Citation Nr: 23020195 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 14-32 269 DATE: March 31, 2023 REMANDED Entitlement to service connection for a right hip disability, including as secondary to service-connected bilateral knee disabilities, is remanded. Entitlement to service connection for a left hip disability, including as secondary to service-connected bilateral knee disabilities, is remanded. REASONS FOR REMAND The Veteran had active military service from January 1978 to April 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a September 2021 Travel Board hearing. A copy of the transcript has been associated with the file. Service connection for a right hip disability was previously before the Board in April 1982. Service connection for both a right and left hip disability have been before the Board in February 2022 and June 2022. Most recently, in June 2022, the Board remanded the issues for additional development, to include obtaining addendum opinions. 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected bilateral knee disability, is remanded. 2. Entitlement to service connection for a left hip disability, to include as secondary to service-connected bilateral knee disability, is remanded. The Veteran has a bilateral hip disability that she contends is related to service. Specifically, she contends her bilateral hip disability is a result of an in-service fall in which service connection was previously granted for her bilateral knees. In the alternative, she contends her bilateral hip disability is secondary to her service-connected bilateral knee disability. The Veteran is service connected for patellofemoral pain syndrome with mild degenerative joint disease (DJD) of the right knee and DJD of the left knee. In support of her claim, the Veteran provided a letter from Dr. M.L. in June 2012 that found it is at least as likely as not that the Veteran's injury from basic training aggravated both knees and both hips beyond what the normal progression of disease would warrant. No additional rationale was provided. In June 2012, a lay statement from H.A., a former co-worker of the Veteran from 1982-1989, reported that the Veteran experienced hip pain, particularly right hip pain during the time they worked together. In September 2021, a private physician, Dr. G.O. provided a statement that found it is very difficult to say with medical certainty that the degenerative changes in her hips results from her knee injury, however, it is medically feasible that the hip degenerative changes are from abnormal gait from her knee injury that occurred many years ago. During her September 2021 Board hearing, the Veteran testified that the injury to her hips could have resulted from the same injury that service connection was granted for her bilateral knee disability. She testified she began seeking treatment "right away" after service for her bilateral hip disability, but those records are now unavailable due to the facilities not keeping records over 10 years, absorption of another hospital taking over the records, and flooding. She testified to problems with her gait ever since the injury in 1978. Pursuant to a February 2022 Board remand, a VA examination was provided in March 2022. In pertinent part, the examiner used the wrong legal standard when providing an opinion. The June 2022 Board remand found these opinions inadequate and remanded for an opinion using the correct legal standard to address any right hip pre-existing conditions. Pursuant to the June 2022 Board remand, opinions were provided in October and November 2022. In October 2022, the examiner found it was less likely than not that the Veteran's right hip injury was incurred in or caused by service. For rationale, the examiner noted the Veteran reported difficulty squatting on the entrance examination in 1977. An orthopedic consultation noted in April 1980 documented the Veteran's hip symptoms were congenital, which would mean she had a pre-existing right hip condition when she enlisted. The examiner found the condition that clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond natural progression by an in-service injury or event. For rationale, the examiner noted that following the April 1980 consultation that noted a congenital condition, the record is silent until 2010 when the Veteran was seen for bilateral hip pain and stiffness which began when she attempted to ride a bike. A temporary aggravation of the Veteran's right hip pre-existing condition is plausible, but a permanent aggravation cannot be established. For secondary service connection for the right hip, the examiner found it is less likely than not that the claimed condition was proximately due to or the result of the Veteran's service-connected disability. For rationale, the examiner noted the Veteran was service connected for right knee patellofemoral pain syndrome with mild degenerative joint disease (DJD) and DJD of the left knee. The Veteran was noted to have a right hip congenital condition in 1980, after separation from service. The Veteran has been diagnosed with osteoarthritis of bilateral hips, bilateral trochanteric syndrome, and leg length discrepancy. The Veteran's right hip congenital condition predates her right knee patellofemoral pain syndrome with mild DJD and DJD of the left knee. The service-connected right knee patellofemoral pain syndrome with mild DJD and DJD of the left knee have not caused or aggravated the Veteran's congenital right hip condition. Regarding the left hip, the October 2022 examiner originally provided rationale only referencing the right hip disability. An addendum opinion was provided in November 2022 that found it is less likely than not that the Veteran's osteoarthritis of the bilateral hips, bilateral trochanteric syndrome, and leg length discrepancy was incurred during service. For rationale, the examiner noted no medical evidence for hip complaints while in service and her separation examination was negative for hip complaints. For secondary service connection for the left hip, the examiner found her service-connected right knee patellofemoral pain syndrome with mild DJD and DJD of the left knee did not cause or aggravate the Veteran's left hip osteoarthritis, left trochanteric syndrome, or leg length discrepancy. Arthritis in one joint does not cause arthritis in another joint. There is no evidence to support the Veteran had gait abnormality over the years as a result of her service-connected right knee patellofemoral pain syndrome with mild DJD and DJD of the left knee. Her entrance examination noted difficulty squatting and her separation examination was negative for hip complaints. An x-ray of the bilateral pelvis performed June 2002 found degenerative arthritis, 24 years post service. Although it is noted the Veteran unmistakably has a congenital hip condition prior to service, there are no records to support hip complaints during service. Therefore, the service-connected condition did not cause or aggravate the claimed condition beyond its normal progression. The Board finds the opinions of record are inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). First, the examiner does not clearly distinguish and discuss which diagnosed conditions are considered pre-existing and did not adequately address the questions involving the congenital aspect of any right hip disability, to include using the "clear and unmistakable" standard in the opinion. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003). Second, the examiner failed to address the Veteran's contentions, including that her bilateral hip disability is the result of an in-service injury or aggravated by her knee disability, separate and distinct from any congenital defect. Third, the examiner noted no in-service hip complaints and no complaints following service until 2010. However, there are notations of hip complaints not mentioned by the examiner. For example, a February 1978 STR documented an in-service fall during a fireman's carry exercise, and she was put on profile for 4 days. In October 1978, 6 months following service, she reported discomfort in the right hip joint after running, dancing, or any activity which necessitates long strides. A June 1979 record reported an injury to the right hip during basic training, with pain noted after extensive exercise with numbness to the right foot and pain in right calf. In addition, hip pain was noted in private treatment records including in August 1986 (bilateral hip pain); October 1987 (right hip pain); January 1996 (bilateral hip pain); and May 2001 (right hip pain). The record also contains a 2001 formal diagnosis of right trochanteric bursitis and a 2002 diagnosis of bilateral hip DJD. Therefore, the opinions are at least in part based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value). Fourth, the examiner used the same rationale for both causation and aggravation. The United States Court of Appeals for Veterans Claims recently held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). As such, on remand, the VA examiner must provide separate findings and rationales relating to causation and aggravation. For the above reasons, remand is warranted to obtain addendum opinions. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate with the file. 2. Invite the Veteran to submit any private medical documentation, medical opinions with sufficient supporting rationale, and any other lay or medical evidence regarding the nature and etiology of her bilateral hip disability. 3. Obtain an addendum opinion from an appropriate clinician addressing the nature and etiology of the Veteran's bilateral hip disability. The entire claims file, including a copy of this Remand, must be reviewed by the examiner. Reexamination of the Veteran is not required, unless deemed necessary by the examiner in order to provide the requested opinions. The examiner should review the prior Remands for an understanding of why the opinions were inadequate. Then, address the following: (a.) Please identify each of the Veteran's diagnosed hip disabilities demonstrated during the period on appeal, to include bilateral osteoarthritis, bilateral bursitis, leg length discrepancy, and medical evidence suggesting a right femoral head congenital anomaly. (b.) For each diagnosed hip disability, is there clear and unmistakable evidence (i.e., undebatable) it predated service? If so, specify the condition and evidence upon which this opinion is based. The examiner must use the clear and unmistakable standard. The examiner's attention is directed to: (1) "difficulty squatting" noted on entrance examination and its relation, if any, to her hips; (2) August 1979 x-ray that showed changes to the right femoral head that suggest they are congenital in nature; (3) the May 1980 medical record indicating a right hip condition is "likely a congenital problem;" (4) additional imaging that showed no bony abnormalities, including pelvis x-ray in August 1986 and October 1987 (Radiologists LTD); June 2002 x-rays revealed degenerative changes to both hips, with no congenital condition noted (Sanford Health Radiology). (c.) For each hip disability which the examiner determines clearly and unmistakably predated service, is there clear and unmistakable evidence that the condition was not aggravated during service beyond its natural progression. Again, the Board emphasizes that the opinion must be expressed in terms of clear and unmistakable the disability was NOT aggravated during service beyond its natural progression. Please explain why, to include references to relevant evidence and discuss subsequent diagnoses including osteoarthritis and bursitis and its relation, if any, to aggravation. (d.) For each hip disability that did NOT predate service, please opine: i. Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed hip disability had onset during service or is otherwise etiologically related to service. In formulating any opinion, please consider and discuss the lay statements of record including (1) the Veteran's contentions regarding onset and continuity of pain following service, to include her contention her bilateral hip disability is separate and distinct from any congenital defect and is the result of an in-service injury during a fireman's carry exercise; (2) the lay statement provided by her former co-worker that reported she experienced hip pain in the 1980's following service. In addition, please consider treatment records following service that noted bilateral hip pain, including: October 1978 medical treatment record, 6 months post service, that noted right hip joint pain after running, dancing, or any activity which necessitates long strides; Private treatment records documenting hip pain including August 1986 (bilateral hip pain); October 1987 (right hip); January 1996 (bilateral hip pain); May 2001 (right hip); The June 1979 treatment record that noted pain in the right hip after injury in basic training; The April 1980 orthopedic consultation that the Veteran contended an in-service fall resulted in bilateral knee injury and a right hip injury with continuity of symptoms (including pain) since separation. Pain was noted on examination. ii. Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed hip disability was caused by her service-connected bilateral knee disability. iii. Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed hip disability was aggravated (i.e., worsened) by her service-connected knee disability. In formulating any opinion, please address (1) the Veteran's contention that her bilateral hip disability is secondary to her knee disability; (2) the September 2021 statement from Dr. G.O. that it is medically feasible that the Veteran's degenerative hip changes are from abnormal gait from her knee injury many years ago, to include discussion if the Veteran's knee disability caused any gait disturbances. (Continued on the next page) ? The VA examiner must provide separate findings and rationales relating to causation and aggravation. Simply repeating the same rationale for both opinions will be found inadequate. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.