Citation Nr: 22014428 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-28 386 DATE: March 12, 2022 ORDER Entitlement to service connection for right hip strain is granted. REMANDED Entitlement to an initial compensable rating for residuals of right ring finger fracture is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran's right hip strain is a result of service. CONCLUSION OF LAW The criteria for service connection for right hip strain are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1996 to September 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Board has expanded the issue of service connection for depression to encompass any and all psychiatric diagnoses reasonably raised in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 2021, the Veteran testified at a Virtual hearing before a Veterans Law Judge (VLJ). In January 2022, the Veteran was notified that the VLJ who conducted the August 2021 hearing was no longer available to participate in the adjudication of the Veteran's claim. The Veteran was also informed of her right to a new hearing. See 38 C.F.R. § 20.604. If there was no response to this letter within 30 days, she was advised that the Board would presume that she did not desire another hearing. The Veteran did not respond. Entitlement to Service Connection for Right Hip Strain Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A Veteran seeking compensation under these provisions must establish three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran has a current right hip disability diagnosed as right hip strain. See May 2014 VA examination report. The first element of Shedden is met. The Veteran's service treatment records (STRs) document multiple in-service reports of right hip pain and treatment for ongoing right hip pain. See April 2001, May 2001, August 2001, September 2001, October 2001, November 2002, May 2003, and June 2003 STRs. The Veteran's STRs further document an in-service diagnosis of right trochanteric bursitis. See June 2004 service treatment record. The second element of Shedden is also established. Regarding the presence of a link between the diagnosed right hip disability and in-service injury, after resolve all doubt in favor of the Veteran, the Board finds that the third element of service connection is also established. A May 2014 VA examiner concluded the Veteran's right hip disability was at least as likely as not related to the duties of military service. The examiner pointed to the Veteran's October 1995 enlistment examination showing no pre-existing disability; multiple STRs noting complaints of hip pain as well as an in-service diagnosis of trochanteric bursitis; and continuation of objective evidence of current pathology in the hip as indicated on examination by a decreased range of motion. The Veteran's treating VA physician similarly opined in October 2021, that the Veteran's right hip disability was as likely as not permanently caused or aggravated by active duty service. Additionally, a fellow servicemember, D.K., wrote in October 2021, that she observed the Veteran experiencing "many issues with her hips," from 2000 to 2002, and that at times their work-out sessions ended early due to the Veteran's report of pain. The Board finds the VA opinions, as well as the lay statement from D.K., to be highly probative and supported by the medical evidence of record. There is no opinion to the contrary. All three elements of Shedden are met. Accordingly, service connection for right hip strain is warranted. REASONS FOR REMAND 1. Entitlement to an Initial Compensable Rating for Residuals of Right Ring Finger Fracture is Remanded. The Veteran has indicated that her residuals of right ring finger fracture have worsened since her last VA examination. She contends that she experiences difficulty with grasping and/or holding items due to numbness and shooting pain in her right ring finger. See August 2021 Board hearing transcript. As such, remand for the Veteran's claim is warranted for a contemporaneous examination that contemplates the Veteran's current impairment. 2. Entitlement to Service Connection for an Acquired Psychiatric Disorder is Remanded. The Veteran was afforded a VA examination for her psychiatric disorder in May 2014. The examiner noted a diagnosis of unspecified depressive disorder and provided a negative direct service connection opinion. The accompanying rationale stated there were no in-service medical records showing Veteran was ever diagnosed or treated for a psychiatric condition. However, a May 2003 STR shows the Veteran sought in-service treatment for anxiety and depression. This record indicated the Veteran also endorsed thoughts of wishing she had not been born. An assessment of dysthymia and possible major depressive episode was noted. The record further indicates that the Veteran has also raised a theory of secondary service connection for anxiety based on right hip pain. See October 2021 correspondence. In light of the inaccuracy reflected in the rationale of the May 2014 VA medical opinion, and the determination of service connection for right hip strain set forth herein, the Board finds that a new VA examination and opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to determine the nature and severity of her residuals of right ring finger fracture. The examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of difficulty with grasping things and/or holding things due to numbness and shooting pain during flares or repetitive use. 2. Schedule the Veteran for a mental health examination to determine the nature and etiology of any acquired psychiatric disorder. The clinician should thoroughly review the Veteran's service medical records, post-service medical records, and lay statements contained in the record. The examiner should address the following: a. Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period. b. For any diagnosed acquired psychiatric disorder, the examiner should state whether it is as likely as not that: i. it had its initial onset in service or within a year of service discharge or is otherwise etiologically related to service. ii. was proximately due to the Veteran's service-connected right hip disability or any other service-connected disability. iii. underwent any incremental increase in disability, regardless of its permanence, due to the service-connected right hip disability or any other service-connected disability. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. A rationale for the clinician's opinion must be provided. The clinician should not discount a lay statement solely because it is not reflected in a medical record. If the truth or falsity of any statement made by the Veteran or a third party makes a difference to the clinician's opinion, the clinician should identify the statement and how it would affect his or her opinion. An opinion may be given in the alternative depending on unknown facts. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.