Citation Nr: 21042317 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-17 116 DATE: July 12, 2021 REMANDED Entitlement to service connection for a left hip condition, to include as secondary to a service-connected left ankle disability is remanded. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to service-connection for a back condition, to include as secondary to a service-connected left ankle disability is remanded. Entitlement to service connection for a condition of the pelvis, to include as secondary to a service-connected left ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1980 to February 1989, and from May 1989 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in December 2018. A transcript of the hearing is of record. The Board remanded this matter in June 2019 for additional development. The matter is now returned to the Board for further appellate review. 1. Entitlement to service connection for a left hip condition, to include as secondary to a service-connected left ankle disability is remanded. The Veteran contends her left hip condition was caused by a left thigh injury she sustained while stationed in Japan or the result of wearing her duty belt. In the alternative, she contends that her service-connected left ankle caused her to have an abnormal gait, which caused her left hip condition. In June 2019, the Board remanded the Veteran's claim, finding the examinations of record to be inadequate. VA provided the Veteran an examination in December 2019. Unfortunately, the examination is inadequate to adjudicate the Veteran's claim. Concerning direct service connection, the examiner opined the Veteran's left hip condition was less likely than not caused by active service, in part, because the Veteran's service treatment records (STRs) did not contain notations of a hip injury. However, the examiner also reported the Veteran's STRs contain a notation that the Veteran sought treatment at the Yokosuka Naval Hospital for an upper left thigh injury, diagnosed as an adductor brevis/sartorius muscle tear. The examiner did not explain why the Veteran's current left hip is not related to her in-service diagnosis of an adductor brevis/sartorius muscle tear. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the Veteran has continuously reported left hip pain since leaving active service. Specifically, in the May 2014 VA Form 9, she reported that she has had problems with her left hip since the incident in Japan. In other words, the examiner appears to have impermissibly dismissed the Veteran's reports of continuous left hip problems solely because these complaints were not documented in contemporaneous medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). Concerning secondary service connection, the examiner opined the Veteran's left hip condition is less likely than not caused by or proximately due to the Veteran's left ankle disability, in part, because medical literature does not support a causal nexus between episodic ankle sprains or a healed ankle fracture and the Veteran's current left hip conditions. The examiner did not provide citations to the medical literature nor explain how it applies to the Veteran's particular situation. The examiner also opined that the Veteran's left hip condition is less likely than not aggravated by her service-connected left ankle disability but did not provide a rationale to support the conclusion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the Board specifically requested the examiner address the Veteran's contention that she has an abnormal gait as a result of her ankle condition that has caused or aggravated her hip condition. The December 2019 examiner indicated the Veteran did not present with an abnormal gait at the December 2019 examination and did not address this contention. However, a July 2011 VA ankle examination indicates the Veteran had an abnormal gait. Further, during the December 2019 examination, the Veteran reported that her left ankle pain sometimes causes her to limp. On remand, the selected clinician must address the Veteran's contention that her ankle caused her to have an abnormal gait/limp, which caused or aggravated her hip disability. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the June 2019 remand, the Board requested the AOJ obtain an ankle examination that includes, in part, range of motion testing in both active and passive; weight-bearing and non-weight bearing; and if pain on motion is observed, then the examiner should indicate the point at which pain began. VA provided the Veteran an examination in December 2019; however, the examiner did not provide the requested range of motion testing measurements for passive and non-weight-bearing. Moreover, the examiner reported the Veteran experienced painful motion; however, the examiner did not report the point at which pain began. Accordingly, a remand is necessary to obtain a new examination that addresses these deficiencies. 3. Entitlement to service-connection for a back condition, to include as secondary to a service-connected left ankle disability is remanded. The Veteran contends her back condition is due to her active duty service. In the alternative, she contends that her service-connected left ankle disability caused her back condition. In June 2019, the Board remanded the Veteran's claim, finding the examination of record to be inadequate. VA provided the Veteran an examination in December 2019. Unfortunately, the examination is inadequate to adjudicate the Veteran's claim. Concerning direct service connection, the examiner provided a negative nexus opinion, in part because the Veteran's STRs do not show she had chronic low back pain, degenerative disease, or a compression fracture while on active duty. However, the examiner then reported the Veteran sought treatment three times in August 1989 for acute back pain, sought treatment for a musculoskeletal strain, and she again sought treatment after experiencing back pain for two days. The examiner did not explain why the Veteran's documented in-service treatment for a musculoskeletal strain and acute back pain did not result in her current back condition. Moreover, in rendering the negative nexus opinion, the examiner reported the Veteran did not complain of numbness, tingling, bladder or bowel problems, or radiation after her in-service injury; however, the examiner did not explain the significance of these symptoms and how they are relevant to the Veteran's service connection claim. This opinion is inadequate, and a remand is necessary to obtain a new opinion that provides a reasoned rationale in support of its conclusion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). Further, during the December 2019 examination, the examiner reported the Veteran has diagnoses of a vertebral fracture and osteoporosis. However, on the December 2019 back disability benefits questionnaire (DBQ), the examiner noted that radiological images suggest mild degenerative changes, disc space narrowing, and scoliosis. Moreover, in the secondary service connection opinion, the examiner indicated the Veteran has additional back diagnoses of degenerative disc disease, degenerative joint disease, herniated nucleus pulposus, and spinal compression. Moreover, a February 2014 VA back examination indicates the Veteran has chronic low back pain, degenerative joint disease, degenerative disc disease and spinal stenosis. On remand, a new examination is necessary to clarify the Veteran's back diagnoses. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Concerning secondary service connection, the examiner opined the Veteran's back condition was not caused by or proximately due to her service-connected left ankle disability, in part, because medical literature does not support that episodic ankle sprains or a healed ankle fractures result in degenerative disc disease, degenerative joint disease, HNP, or a spine compression. The examiner did not provide citations to the medical literature nor explain how it applies to the Veteran's particular situation. Accordingly, a remand is necessary to obtain a new examination to address these deficiencies. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the Board specifically requested the examiner address the Veteran's contention that her abnormal gait caused or aggravated her back condition. As noted above, the December 2019 examiner indicated the Veteran did not present with an abnormal gait and therefore did not address this contention. On remand, the selected clinician must address the Veteran's contention that her ankle caused her to have an abnormal gait or limp, which caused her back disability. Stegall, 11 Vet. App. at 271. 4. Entitlement to service connection for a condition of the pelvis, to include as secondary to a service-connected left ankle disability is remanded. VA provided the Veteran an examination in December 2019 to determine the nature and etiology of her pelvic condition. Unfortunately, this examination is inadequate to adjudicate the Veteran's claim. The examiner provided a negative nexus opinion because there was no evidence of a pelvic or thigh condition. In the June 2019 remand, the Board requested the selected examiner opine whether it is as least as likely as not that the Veteran has a pelvic disability. If the examiner found that the Veteran did not have a current pelvic diagnosis, then the examiner was to explain why there is no pelvic diagnosis, in spite of the Veteran's complaints of pelvic pain symptoms. The examiner did not provide an explanation as to why the Veteran does not have a pelvic condition diagnosis. Stegall, 11 Vet. App. at 271. Additionally, the Federal Circuit has held that where pain causes functional impairment, a "disability" for VA compensation purposes can exist, even if there is no underlying diagnosis or pathology. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Federal Circuit explained that a "disability" under 38 U.S.C. § 1110 refers to the functional impairment in earning capacity, not the underlying cause of said disability. Id. at 1363. The Federal Circuit also noted that 38 C.F.R. § 4.10 defines the term "functional impairment" as the inability of the body or a part of it "to function under the ordinary conditions of daily life including employment." Id. Thus, on remand, a new opinion must be obtained to address whether the Veteran has a current pelvic disability. 5. Entitlement to a TDIU In a December 2019 VA ankle examination, the Veteran reported she had been rendered unemployable by her service-connected left ankle disability. As such, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue is inextricably intertwined with the ratings assigned for her left ankle disability and her service connection claims for her back, left hip, and pelvic condition, particularly because the Veteran did not meet the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a) at any point during the appeal period. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The AOJ should also develop and adjudicate this issue in the first instance to ensure the Appellant is afforded the requisite due process. See 38 U.S.C. § 7104(a); See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) (discussing the requirement of all matters being subject to one review before appeal to the Board). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, preferably with an examiner other than the December 2019 examiner, to determine the nature and etiology of her left hip condition. The claims file and a copy of this remand should be made available to and reviewed by the examiner. The examiner must consider the November 2011 examination that noted symptoms of trochanteric bursitis. All findings should be reported in detail. The examiner is asked to provide an opinion as to: (a) whether it is at least as likely as not (50 percent or greater) that the Veteran's left hip condition began in service or is etiologically related to an in-service event, injury or disease, to include the in-service diagnosis of adductor brevis/sartorius muscle tear and wearing her duty belt. (b) whether the Veteran's left hip condition is at least as likely as not (50 percent or greater) caused by or proximately due to the Veteran's service-connected left ankle disability. The examiner must address the Veteran's contention regarding her abnormal gait/limp, due to her left ankle disability, causing her left hip condition. (c) whether the Veteran's left hip condition is at least as likely as not (50 percent or greater) aggravated by the Veteran's service-connected left ankle disability. The examiner must address the Veteran's contention regarding her abnormal gait/limp, due to her left ankle disability, aggravating her left hip condition. The secondary service connection opinion must address both causation and aggravation to be deemed adequate. In the event the criteria for a diagnosis of a left hip condition are not met, the examiner should specifically state whether there is any functional impairment associated with the Veteran's complaints of left hip pain. Please complete the "Functional Impact" section of the report of examination. If there is functional impairment, please offer an opinion as to whether it is at least as likely as not that such impairment is associated with the Veteran's service, to include as secondary to a service-connected left ankle disability. The examination report must include a complete rationale for any opinion provided. 2. Schedule the Veteran for an appropriate VA examination, preferably with an examiner other than the December 2019 examiner, to determine the current nature and severity of her left ankle disability. The claims file and a copy of this remand should be made available to and reviewed by the examiner. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, and in weight-bearing and non-weight bearing. The examiner must render specific findings and describe any pain, weakened movement, excess fatigability, instability of station, and incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for an appropriate VA examination, preferably with an examiner other than the December 2019 examiner, to determine the nature and etiology of her back condition. The claims file and a copy of this remand should be made available to and reviewed by the examiner. All findings should be reported in detail. The examiner is asked to provide an opinion as to: (a) Whether it is at least as likely as not (50 percent or greater) that the Veteran's back condition began in service or is etiologically related to an in-service event, injury or disease, to include the notations of back pain in the August 1989 service treatment records. (b) whether the Veteran's back condition is at least as likely as not (50 percent or greater) caused by or proximately due to the Veteran's service-connected left ankle disability. The examiner must address the Veteran's contention regarding her abnormal gait/limp, due to her left ankle disability, causing her back condition. (c) whether the Veteran's back condition is at least as likely as not (50 percent or greater) aggravated by the Veteran's service-connected left ankle disability. The examiner must address the Veteran's contention regarding her abnormal gait/limp, due to her left ankle disability, aggravating her back condition. The secondary service connection opinion must address both causation and aggravation to be deemed adequate. The examination report must include a complete rationale for the opinion provided. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of her pelvic condition. The claims file and a copy of this remand should be made available to and reviewed by the examiner. All findings should be reported in detail. The examiner is asked to provide an opinion as to: (a) Whether it is at least as likely as not (50 percent or greater) that the Veteran has a pelvic disability. If no current pelvic disability is found, the examiner must explain why he or she finds there is no current pelvic disability in spite of the Veteran's complaints of pelvic pain symptoms. (b) For any pelvic disability that is diagnosed, the examiner must opine as to whether it is at least as likely as not that the Veteran's pelvic condition began in service or is etiologically related to an in-service event, injury or disease. (c) For any pelvic disability that is diagnosed, the examiner must opine as to whether the Veteran's pelvic condition is at least as likely as not (50 percent or greater) caused by or proximately due to the Veteran's service-connected left ankle disability. The examiner should address the Veteran's contention regarding her abnormal gait/limp, due to her left ankle disability, causing her pelvic condition. (d) For any diagnosed pelvic disability, the examiner must opine whether the Veteran's pelvic condition is at least as likely as not (50 percent or greater) aggravated by the Veteran's service-connected left ankle disability. The examiner should address the Veteran's contention regarding her abnormal gait/limp, due to her left ankle disability, aggravating her pelvic condition. (e) IF and ONLY IF, the Veteran is found service connected for a back condition, the examiner should provide an opinion addressing whether the Veteran's pelvic condition is caused by, proximately due to, or aggravated by, her service-connected back disability. The secondary service connection opinion must address both causation and aggravation to be deemed adequate. The examination report must include a complete rationale for the opinion provided. Finally, if no pelvic disability is diagnosed, the examiner must opine whether it is at least as likely as not that the Veteran's current pelvic symptoms result in functional loss. If so, the examiner must opine whether the current symptoms are related to the Veteran's military service or are secondary to her service-connected left ankle disability. If the examiner finds that the Veteran does not have a diagnosed pelvic disability and finds that the Veteran's pelvic pain does not result in functional impairment, this must be expressly stated along with a rationale for this finding. 5. Develop and adjudicate the issue of entitlement to TDIU. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.