Citation Nr: 23057763 Decision Date: 10/24/23 Archive Date: 10/24/23 DOCKET NO. 20-03 985 DATE: October 24, 2023 REMANDED Entitlement to service connection for lumbosacral spine condition is remanded. Entitlement to service connection for left hip condition is remanded. Entitlement to service connection for right hip condition is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army November 2009 to January 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In May 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to service connection for lumbosacral spine condition. The Veteran contends that he developed a lumbosacral spine condition due to his service-connected left foot disability. During the May 2022 Board hearing, the Veteran testified that he had two different slipped or bulging discs. He did not have surgery for his back. He had consultations with surgeons about surgery, but he couldn't remember the doctors' name. He saw Dr. H. for pain. He did not have issues with his back before service. While in service, he was an airborne infantryman. He had a hard parachute landing fall. He started seeking care approximately one year after. A December 2009 Service Treatment Record (STR) shows the Veteran indicated no history of a disabling episode of back pain. On the October 2010 Report of Medical History, the Veteran indicated that he did not have recurrent back pain. An August 2011 letter from the U.S. Army Physical Evaluation Board indicated the Veteran was no longer fit for service duty due to line of duty injury to his left foot. A separation examination is not included in the claims file. However, post-service treatment records show the Veteran complained of back pain within one year after service. See e.g., March 2012 VA Primary Care Note (complained of pain in back). The Veteran was afforded a VA examination January 2018. The examiner indicated the Veteran's lumbar spine was normal. The Veteran reported during the examination that he injured himself while in service during a service jump out of an airplane. He broke several bones in his left foot. He further reported that over time, this disability caused pain in his back. He reported functional loss and chronic pain. Range of motion showed all normal. There was no evidence of guarding, muscle spasms, or abnormal gait. The examiner opined that it was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner wrote that he was unable to confirm a current chronic diagnosis with available records or examination. The evidence did not show that a foot injury or condition permanently worsened as a result of service and there was no evidence of chronicity of care for 8 years to the present. Therefore, no nexus or plausible secondary relationship was established. The January 2018 radiology report completed for the examination showed anteroposterior and lateral views. The lumbar spine showed the prevertebral bodies, disc spaces and posterior elements as normal. There was no evidence of fracture or dislocation. The prevertebral space and soft tissue and SI joints were unremarkable. There was no degenerative disc disease or arthritis seen. The Veteran submitted an August 2018 private medical opinion from Dr. C.H. She indicated that she performed an x-ray on the Veteran's lumbar spine. Upon evaluation, he had an altered gait that worsened over the past few years. X-ray showed some arthritis as well as radiculopathy and sprain in his lumbar region. He was referred to an orthopedist who conducted an MRI. The report from Dr. L. suggested that the Veteran's back pain and nerve pain were caused by bone-on-bone friction between L5-S1. His condition reportedly was as likely as not caused by altered gait. The Veteran also provided an August 2022 private medical opinion from Dr. P. L. The physician indicated that he evaluated the Veteran in-person in August 2022. The physician also indicated that he reviewed the Veteran's service records and medical records. During the evaluation, the Veteran reported that he experienced pain in his dorsal spine aggravated by prolonged standing and bending. Both forward bending and lateral bending bothered him. He also had chronic pain aggravated by stooping, twisting, lifting, and prolonged sitting or standing. Physical examination revealed dorsal spine early upper thoracic kyphosis. It was the beginning of dowager's hump aggravated by superficial soft tissue accumulation. There was generalized tenderness present throughout the upper dorsal spine with specific tenderness in the midline and paravertebral in the mid-to-lower dorsal spine. Goniometric measurements revealed extension to 30 degrees and forward flexion to 45 degrees. The physician opined that it was at least as likely as not that the Veteran's dorsal spine condition with spinal stenosis and early spinal cord compression was related to his ongoing gait disturbance and the lasting effects of his injuries in the parachute jump. The physician also opined that it was at least as likely as not the Veteran's lumbar spine condition was related to the initial unevaluated parachute jump and the ongoing gait disturbance. The Board finds that remand is required. An examination is inadequate if it does not consider all the relevant evidence of record, including lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The VA medical opinion did not acknowledge the Veteran's statements or the post-service notations relating to pain. The examination revealed no current diagnosis of a spine condition. However, the Veteran reported back pain two months after leaving service during at a VA visit. In addition, the Veteran contends that his service-connected left foot disability caused him to have pain in his back over time. The examiner did not address this evidence. The 2018 private medical opinion did not provide an etiology opinion. Likewise, the 2022 private medical opinion provided an opinion but no rationale. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). The physician generally restated the Veteran's narrative about the etiology of his condition. The physician diagnosed the Veteran with a condition but did not explain how that condition was related to his left foot disability. The physician also did not acknowledge the contrary medical evidence in the file indicating the Veteran does not have a disability or abnormal gait due to his left foot disability. For the reasons listed above the Board finds both medical opinions inadequate. Therefore, a new medical opinion is warranted to determine the etiology of the Veteran's claimed disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). 2. Entitlement to service connection for left hip condition. 3. Entitlement to service connection for right hip condition. The Veteran contends that he developed a left and right hip condition due to his service-connected left foot disability. During the May 2022 Board hearing, the Veteran testified that he did not have issues with his hips before service. He also stated that he had an impingement in his hip. If he stepped the wrong way, it would come out. When the weather changed, his hip pain increased. STRs do not show a complaint, treatment, or diagnosis of a hip condition. See e.g., March 2010 Winder FPC record (no hip joint pain); October 2010 Report of Medical History (no history of swollen joints). An August 2011 letter from the U.S. Army Physical Evaluation Board indicated the Veteran was no longer fit for service duty to line of duty injury to his left foot. A separation examination is not included in the claims file. Post-service treatment records do not show the develop of a condition within one year after discharge of service. However, a May 2013 Muskogee VAMC Emergency Room Note shows the Veteran received Rocephin injection in his left hip and a Toradol injection in his right hip). The Veteran was afforded a VA examination in January 2018. The examiner indicated the Veteran's hips were normal. The Veteran reported during the examination that he injured himself while in service during a service jump out of an airplane. He broke several bones in his left foot. Over time, this disability caused pain in his hips. He reported symptoms of dull, shooting pain that occurred intermittently while doing activity. Range of motion testing indicated all normal. The examiner opined that it was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner wrote that he was unable to confirm a current chronic diagnosis with available records or examination. The evidence did not show that a foot injury or condition permanently worsened as a result of service and there was no evidence of chronicity of care for 8 years to the present. Therefore, no nexus or plausible secondary relationship was established. The January 2018 radiology report completed for the examination showed anteroposterior and lateral views of the hip and anteroposterior view of the pelvis. The left hip was noted to be higher than the right. The remainder of the visualized soft tissue and bony structures were radiographically within normal limits. The Veteran submitted an August 2018 private medical opinion from Dr. C.H. She indicated that she performed an x-ray on the Veteran's hips. Upon evaluation, he had altered gait that worsened over the past few years. He suffered from bilateral hip subluxation also known as partial hip dislocation when turning to walk while lifting the leg. The Veteran was unable to climb stairs or ladders without excruciating pain in his hips. This condition was as likely as not caused by altered gait. The Veteran also provided an August 2022 private medical opinion from Dr. P. L. The physician indicated that he evaluated the Veteran in-person in August 2022. The physician also indicated that he reviewed the Veteran's service records and medical records. During the evaluation, the Veteran reported that he experienced severe pain and limitation in both sides, right greater than left. There was pain on abduction and internal rotation of the right hip. He did not specifically describe sciatic pain. He also reported that his gait was being limited. He developed an antalgic gait particularly on the right side with walking. Physical examination showed an antalgic gait demonstrating a progressive limp on ambulation primarily on the right side, which the Veteran related to the hip. The physician opined that it was at least as likely a not that the Veteran's bilateral hip condition was related to aggravation of underlying anatomic abnormality of cam deformity of the femoroacetabular regions by virtue of his initial parachute jump, which was completely unevaluated and his ongoing bilateral gait disturbance. This was documented to be a specific and identifiable condition and clearly ongoing treatment up to and including joint replacement will be required. The Board finds that remand is required. An examination is inadequate if it does not consider all the relevant evidence of record, including lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The VA medical opinion did not acknowledge the Veteran's statements or the post-service notations relating to pain. The examination revealed no current diagnosis of the hips. However, the radiology report indicated the Veteran's left hip was higher than the right. This alone may cause an abnormal gait. However, the examiner did not acknowledge or explain this. The examiner also did not acknowledge the May 2013 VA notation of bilateral hip injections. In addition, the examiner repeated the same rationale for the hip medical opinion as he did for the spine medical opinion. Miller v. West, 11 Vet. App. 345 (1998). The 2018 private medical opinion did not provide an etiology opinion. In the 2022 private medical opinion, the physician generally restated the Veteran's narrative about the etiology of his hip conditions. The physician diagnosed the Veteran with a condition but did not explain how that condition was related to his left foot disability. The physician indicated the condition was related to gait disturbance. The physician did not state that the left foot disability, which is currently evaluated at 10 percent disabling, caused gait disturbance or hip unalignment. Furthermore, the physician did not address the lack of chronicity of care. The record does not contain notations of ongoing complaint or treatment for a bilateral hip condition. For the reasons listed above the Board finds both medical opinions inadequate. Therefore, an addendum medical opinion is warranted to determine the etiology of the Veteran's claimed disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). 4. Entitlement to service connection for left knee condition. 5. Entitlement to service connection for right knee condition. The Veteran contends that he developed a left and right knee condition due to his service-connected left foot disability. During the May 2022 Board hearing, the Veteran was asked by his representative if he had a diagnosis for this left knee. He responded that he treated his left knee with ibuprofen and water. The Veteran was about any treatment he received after service and he responded, "general pain ot the left knee, walking, bending, kneeling, sometimes makes it a little difficult to get around." Again, he was asked if he had any actual treatment for that. He stated that he was treated in general for everything. For the right knee, the representative asked did the right knee issue start to develop after the left knee issue or around the same time. The Veteran stated, "generally over time. Kind of walked with a gimp, things just kind of gradually got worse." The Veteran then stated that he favored his left knee, because of his left foot disability. He also stated that he had knee injections for both knees but at different times. He did not have issues with his knees before service. He now experienced swelling in his left knee. STRs indicate the Veteran experienced knee pain while in service. See e.g., December 2009 Winder TMC Clinic Note (complained of left knee pain for one day; complained of right knee pain for 3 hours); April 2011 Medical Evaluation Board (knee joint pain). A December 2009 image report noted the knee injury to be acute. On the October 2010 Report of Medical History in service, the Veteran indicated that he did not have knee trouble. In April 2011, the Veteran completed an interview with the medical evaluation board. On the report, it was noted that the Veteran had a "bad landing during an airborne operation...the left foot was swollen and painful, and he was unable to walk...the rest of the leg was also injured but resolved over time." An August 2011 letter from the U.S. Army Physical Evaluation Board indicated the Veteran was no longer fit for service duty to line of duty injury to his left foot. A separation examination is not included in the claims file. However, post-service treatment records show the Veteran complained of knee pain within one year after service. See e.g., March 2012 VA Primary Care Note (complained of pain in knee). The Veteran was afforded a VA examination in January 2018. The examiner noted the Veteran to have degenerative arthritis in both knees. The Veteran reported during the examination that he injured himself while in service during a service jump out of an airplane. He broke several bones in his left foot. Overtime, this caused pain in his knees. He complained of bilateral shooting pain in both knees. Range of motion testing were all normal. His current treatment included meloxicam daily and ibuprofen as needed. The examiner noted degenerative changes to knees due to weight and obesity. The examiner opined it was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner wrote that he was unable to confirm a current chronic diagnosis with available records or examination. The evidence did not show that a foot injury or condition permanently worsened as a result of service and there was no evidence of chronicity of care for 8 years to the present. Therefore, no nexus or plausible secondary relationship was established. The January 2018 radiology report completed for the examination showed moderate narrowing of both compartments, consistent with degenerative change for the left and right knee. The remainder of the visualized soft tissues and bony structures were radiographically within normal limits. The Veteran submitted an August 2018 private medical opinion from Dr. C.H. She indicated that she performed x-ray on the Veteran's hips. Upon evaluation, he had altered gait that worsened over the past few years. The Veteran was unable to climb stairs or ladders without excruciating pain in his knees. This condition was as likely as not caused by altered gait. The Veteran also provided an August 2022 private medical opinion from Dr. P. L. The physician indicated that he evaluated the Veteran in-person in August 2022. The physician also indicated that he reviewed the Veteran's service records and medical records. During the evaluation, the Veteran reported that he experienced pain in his knees, right greater than left. He injured his right knee in service. On occasion, it popped. He did not report swelling and he had not been evaluated for his knees previously. Physical examination of both knees revealed effusion bilaterally but more so on the right. The physician opined that it was as least as likely as not that the right knee condition was related to the initial in-service injury and aggravated by gait disturbance attendant to the Veteran's service-connected left foot injury. Likewise, the physician opined that it was as least as likely as not that the left knee condition was related to ongoing gait disturbance between the right knee and the left foot. The Board finds that remand is required. An examination is inadequate if it does not consider all the relevant evidence of record, including lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The VA medical opinion did not acknowledge the Veteran's statements, in service notations of knee pain, the in-service notation about injury to the entire leg that resolved over time or the post-service notations relating to pain. The examination revealed degenerative arthritis of the knees. The noted the changes to be due to weight and obesity. However, the examiner did not explain how he reached this conclusion. Also, the examiner repeated the same rationale for the knee medical opinion as he did for the spine and hip medical opinion. This medical opinion is inadequate. The 2018 private medical opinion did not provide an etiology opinion. In the 2022 private medical opinion, the physician generally restated the Veteran's narrative about the etiology of his knee conditions. The physician did not acknowledge the in-service notation of the right knee injury being acute and the lack of chronicity of care after service. The record does not contain notations of ongoing complaint or treatment for bilateral knee conditions. For the reasons listed above the Board finds both medical opinions inadequate. Therefore, an addendum medical opinion is warranted to determine the etiology of the Veteran's claimed disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). These matters are REMANDED for the following action: 1. Obtain any outstanding medical records related to the claims on appeal and associate them with the claims file. 2. Then obtain a new medical opinion to determine the nature and etiology of the Veteran's conditions. The need for an in-person examination is left to the discretion of the assigned examiner. A complete copy of the claims file must be provided for the examiner to review. The examiner is asked to review the entire claim file and indicate in the record that he or she has done so. Thereafter, the examiner is asked to do the following: (a.) Determine if the Veteran has a current spine, hip, or knee disability. (b.) If the Veteran has a current disability of the spine, hip, or knee, then determine whether each disability is at least as likely as not (50 percent probability or greater) was incurred in service or was proximately due to or aggravated by the Veteran's service-connected left foot disability described as "healed open reduction and internal fixation third, fourth, and fifth metatarsal left foot and heterotopic ossification of the fourth metatarsal left foot pain status post metatarsal fracture." For the hip, if and only if, a single hip condition is determined to be related to the Veteran's left foot disability and the other hip is not, then the examiner is asked to determine if the non-related hip condition is at least as likely as not (50 percent probability or greater) is secondary to the related hip condition. For the knee, if any only if, a single knee condition is determined to be related to the Veteran's left foot disability and the other knee is not, then the examiner is asked to determine if the non-related knee condition is at least as likely as not (50 percent probability or greater) is secondary to the related knee condition. The examiner must acknowledge and comment on the service treatment records, post-service treatment records related to pain, the Veteran's statements and the private medical opinions included in the record. The examiner is asked to render a unique rationale for each medical opinion provided. Copying and pasting an explanation for each medical opinion will not be adequate. A complete rationale must be provided for any opinion rendered. If an opinion cannot be rendered without resulting to mere speculation, the examiner must identify any information that must be obtained to render such an opinion. 3. After ensuring compliance with the directives of this remand and taking any additional steps necessary to develop this claim, readjudicate the claims on appeal. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.