Citation Nr: 22052895 Decision Date: 09/16/22 Archive Date: 09/16/22 DOCKET NO. 19-09 170 DATE: September 16, 2022 ORDER Entitlement to service connection for right leg condition is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for synovitis with femoro-acetabular impingement, pincer-type, right hip, is remanded. Entitlement to an initial compensable rating for limitation of flexion of thigh, right hip, is remanded. Entitlement to an initial compensable rating for limitation of extension of thigh, right hip, is remanded. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease and arthritis is remanded. Entitlement to service connection for disability manifest by right knee instability is remanded. Entitlement to service connection for spinal disability, to include a coccyx condition, is remanded. Entitlement to service connection for disability manifest by lower extremity radiating pain, including a sciatic nerve condition, is remanded. Entitlement to service connection for left ear hearing loss disability is remanded. Entitlement to service connection for right ear hearing loss disability is remanded. FINDING OF FACT The Veteran has not had a right leg disability at any time during or approximate to the pendency of the claim, beyond those that are already encompassed by the other issues on appeal or those for which the Veteran is specifically seeking service connection. CONCLUSION OF LAW The criteria for service connection for right leg condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to December 1976. In September 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing. A transcript of the proceeding is of record. The Board notes that the scope of the Veteran's claim for service-connection for back and sciatic conditions includes any disability that reasonably may be encompassed by his description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the evidence of record, the Board has recharacterized these claims as claims for service connection for a spinal disability, to include a coccyx condition, and service connection for disability manifest by lower extremity radiating pain, including a sciatic nerve condition. 1. Entitlement to service connection for right leg condition The Veteran seeks service connection for a right leg condition. See March 2018 claim for benefits. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current right leg disability, and has not had one at any time during the pendency of the claim or recent to the filing of the claim, beyond those believed to be associated with his service connected right knee and hip disabilities. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran has attended VA examinations to evaluate his right leg and has only been diagnosed with right knee and hip disabilities for which he is already service connected. The Veteran also contends he has pain radiating in his lower extremity, but this is the subject of a different claim. Similarly, the limited treatment records on file do not indicate any other additional diagnosis or disability. During his September 2021 Board hearing, the Veteran was questioned about this claim and reported mobility and pain issues related to his knees and hips, while also mentioning his calf or leg muscle. For clarification, the undersigned asked the Veteran if there were any other right leg disorders or diagnoses he has received, other than the ones he is already service connected for, and the Veteran denied having any. In essence, the Veteran has already been granted service connect for his right leg condition claim. In his March 2018 clam for benefits, the Veteran sought service connection for a "Right Hip/Sciatic condition" and a "Right Leg Condition". The agency of original jurisdiction subsequently granted service connection for right hip, thigh and knee disabilities, and the Board is considering the sciatic condition claim below. Considering the evidence of record, including the Veteran's own testimony, the Board finds the evidence of record persuasively weighs against finding there is any additional right leg disability beyond those that the Veteran is already service connected for (hip, thigh, and knee) or that is the subject of a distinct service connection claim (e.g. sciatic/radiating pain). Accordingly, there is no additional current right leg condition and the first element of service connection, a current disability, is not met. The Board recognizes that the Board is remanding additional issues to obtain outstanding medical records. However, remand of this issue is not required. Given the evidence of record, there is no reason to believe any additional right leg disability exists beyond those that are already encompassed by the other issues on appeal, i.e., disabilities associated with already service connect diseases or injuries, such as right knee instability, and those the Veteran is specifically seeking service connection for (sciatic condition/radiating pain). In light of the above, the Veteran's claim for service connection for right leg condition must be denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for synovitis with femoro-acetabular impingement, pincer-type, right hip, is remanded. 2. Entitlement to an initial compensable rating for limitation of flexion of thigh, right hip, is remanded. 3. Entitlement to an initial compensable rating for limitation of extension of thigh, right hip, is remanded. Upon review of the evidence of record, the Board finds remand is warranted for an additional examination and to obtain outstanding medical records. During his September 2021 hearing, the Veteran testified that his right hip and thigh disabilities have worsened since his last VA compensation examination in 2018. Furthermore, the Veteran was granted coverage for a primary care provider through VA's Choice program in April 2018, and records from this provider have not been added to the claims file in the four years since. When the evidence of record "does not adequately reveal the current state of the claimant's disability . . ., the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination." Caluza v. Brown, 7 Vet. App. 498, 505-506 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In light of the time that has passed since his last VA examination, and the evidence of possible worsening, the Board finds additional examination is required to assess the current state of the Veteran's right hip, to include thigh, disabilities. Additionally, remand is warranted to allow VA to attempt to obtain the outstanding records from the Veteran's primary care provider. The Board acknowledges that the Veteran received this treatment at the expense of VA; therefore, VA has an increased obligation to obtain these records. See 38 C.F.R. § 3.159(c)(2). 4. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease and arthritis is remanded. 5. Entitlement to service connection for disability manifest by right knee instability is remanded. In addition to obtaining records from the Veteran's primary care physician, the Board finds remand is warranted for an additional examination. Like with his right hip and thigh disabilities, the Veteran testified that his right knee disability has worsened since it was examined in 2018. Notably, when asked if he feels like his "knee is unstable or that it will give out," the Veteran answered in the affirmative. See September 2021 hearing transcript, page 4. The Veteran further testified to wearing a knee brace for security. The Board finds the issue of entitlement to service connection for a right knee instability disability has been raised by the record as part of evaluating the Veteran's service connected right knee arthritis. Therefore, this issue must be addressed by the Board. See Bailey v. Wilkie, 33 Vet. App. 188, 197-203 (2021). Nevertheless, there is inadequate evidence to decide this issue, particularly given that treatment records that address his knee are not included in the Veteran's claims file. This evidence may be relevant in determining the severity and type of disability, e.g., patellar instability or recurrent subluxation. Therefore, remand is warranted to obtain relevant medical records and opinions on the current severity of the Veteran's right knee disability, including whether he has a right knee instability disability. 6. Entitlement to service connection for spinal disability, to include a coccyx condition, is remanded. 7. Entitlement to service connection for disability manifest by lower extremity radiating pain, including a sciatic nerve condition, is remanded. Upon review of the evidence of record, the Board finds remand is warranted to schedule examination and obtain private treatment records, including the previously discussed primary care provider records. The Veteran has not been provided a VA examination for his spinal disability claim. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and a service connected disease or injury, so as to require medical examination, is low. See McLendon, 20 Vet. App. at 83. "The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon, 20 Vet. App. at 83. During his hearing before the Board, the Veteran testified to hurting his tailbone (coccyx) in the same in-service hang-gliding incident in which he injured his hips, and that he has not injured his back or hips since. Furthermore, the Veteran affirmed that his back was not the main issue in service, but that it has gotten worse over time. See September 2021 hearing transcript, page 12. A review of the Veteran's service treatment records confirms he sustained trauma to his coccyx in the hang-glider incident. See March 18, 1974 service treatment record. In light of the above, the Board finds the requirements of 38 C.F.R. § 3.159(c)(4), and the low threshold in McLendon, have been met and an examination is required. Additionally, a VA treatment record reveals the Veteran received treatment from private providers from August 2015 to December 2017; however, it is unclear if this treatment is related to his spinal disability. This VA record suggests private treatment records were imported into a VA system, but are not available for the Board to review. See May 31, 2018 VA treatment record; see also September 8, 2018 VA treatment record (private treatment for a finger injury; imported into VA system). Accordingly, remand is warranted to have these potentially relevant records added to the Veteran's claims file. Finally, because a decision on the remanded issue of entitlement to service connection for a spinal disability could significantly impact a decision on the issue of service connection for disability manifest by lower extremity radiating pain, including a sciatic nerve condition, the issues are inextricably intertwined. Accordingly, remand of the claim for service connection for disability manifest by lower extremity radiating pain, including a sciatic nerve condition, is required. Furthermore, the Veteran suggested that he was seen by a VA doctor in relation to his claimed sciatic nerve condition. See September 2021 hearing transcript, pages 20-21. VA treatment records were last added to the Veteran's claims file in 2018. Therefore, remand is also warranted to obtain up-to-date VA treatment records. 8. Entitlement to service connection for left ear hearing loss disability is remanded. 9. Entitlement to service connection for right ear hearing loss disability is remanded. Upon review of the evidence of record, the Board finds remand is warranted for an additional hearing loss examination. The Veteran attended a VA hearing loss and tinnitus examination in June 2018. The examiner opined the Veteran's left ear hearing loss is less likely than not caused by or a result of an event in service. In support of the opinion, the examiner acknowledged the scientific community continues to evaluate the possibility of delayed onset hearing loss, but relied on a 2006 study conducted by the Institute of Medicine (IOM) and its conclusion "that, based on the current understanding of auditory physiology, a prolonged delay in onset of noise-induced hearing loss is unlikely." See June 2018 examination report, page 4. In the United States Court of Appeals for Veterans Claims' (Court) decision in McCray v. Wilkie, 31 Vet. App. 243 (2019), the Court addressed the Board's dependence on a negative VA medical opinion that relied on an IOM report, which contained unfavorable findings as well as unaddressed contradictory findings regarding delayed-onset hearing loss. In addition to the conclusion relied on by the VA examiner, the Court noted the report went on to also find that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." McCray, 31 Vet. App. at 251. The Court held that a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text. The report involved in the McCray decision appears to be the same IOM report relied upon by the June 2018 VA examiner. The examiner did not address the qualifying or contradictory findings contained within the IOM report. As such, the Board finds the medical opinion inadequate and remand for an additional opinion is warranted. The June 2018 VA examiner provided the same opinion and rationale for the Veteran's right ear hearing loss, but the issue was denied because the Veteran's right ear hearing loss was not severe enough to constitute a hearing loss disability for VA purposes. See August 2018 rating decision, page 7; see also 38 C.F.R. § 3.385. During his hearing, the Veteran testified to his belief that his hearing had worsened since the June 2018 examination. Therefore, remand is also warranted to evaluate the current level of severity of the Veteran's right ear hearing loss. The matters are REMANDED for the following action: 1. Obtain the Veteran's up-to-date VA treatment records, and records of treatment paid for by VA, including from the Veteran's primary care provider through VA's Choice program. 2. Ask the Veteran to complete a VA Form 21-4142 for private providers of treatment, including those identified in a May 31, 2018 VA treatment record. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Furthermore, add copies of private treatment records in VA's custody to the Veteran's claims file. See, e.g., May 31, 2018 VA treatment record. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right thigh and hip disabilities, to include whether they cause lower extremity radiating pain. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria throughout the period on appeal. The examiner is remined that portions of the rating schedule addressing the musculoskeletal system under 38 C.F.R. § 4.71a were amended effective February 7, 2021. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, to the extent they exist, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities, including whether Veteran has an instability disability. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria throughout the period on appeal. The examiner is remined that portions of the rating schedule addressing the musculoskeletal system under 38 C.F.R. § 4.71a were amended effective February 7, 2021. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for a VA examination for his reported spinal disability, to include a coccyx disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Identify all spinal disabilities, to include disabilities of the coccyx. For each identified disability, is it at least as likely as not related to service, including the documented hang-gliding incident? For each identified disability, is it at least as likely as not proximately due to service-connected disease or injury, to include but not limited to bilateral hip, thigh and knee disease or injury? For each identified disability, is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disease or injury, to include but not limited to bilateral hip, thigh and knee disease or injury? Provide rationale to support the opinions. 6. Schedule the Veteran for a VA examination to determine whether it is at least as likely as the Veteran has a current hearing loss disability that arose during service or is otherwise related to service, to include as due to in-service noise exposure. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. The examiner should explain why the Veteran's current bilateral hearing loss is or is not merely a delayed response to in-service noise exposure. The examiner should explain the reasoning for any opinion provided, to include the medical significance of any findings, as adjudicators are precluded from making medical findings. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.