Citation Nr: 24012811 Decision Date: 03/27/24 Archive Date: 03/27/24 DOCKET NO. 17-35 313 DATE: March 27, 2024 ORDER Service connection for a left hip disability, to include as secondary to service-connected disabilities, is denied. Service connection for a right hip disability, to include as secondary to service- connected disabilities, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected acquired psychiatric disability, is remanded. Entitlement to a rating in excess of 30 percent prior to April 4, 2023, and in excess of 70 percent thereafter for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 4, 2023, is remanded. FINDING OF FACT The Veteran's bilateral hip disability is not secondary to the Veteran's service-connected bilateral ankle or bilateral knee disabilities and is not otherwise related to an in-service injury or disease.? CONCLUSION OF LAW The criteria for service connection for a bilateral hip disability due to service or service-connected disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2023). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to May 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2015, September 2016, and March 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). An August 2023 rating decision increased the Veteran's acquired psychiatric disability rating to 70 percent and granted TDIU effective April 4, 2023. In September 2019 and December 2022, the Board remanded the claim for further evidentiary development. Included in the December 2022 Board remand was the issues of entitlement to service connection for left and right knee disabilities. A July 2023 rating decision granted service connection for a bilateral knee disability. As such, these issues are no longer in appellate status. A. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify concerning the bilateral hip disability claims. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Concerning the duty to assist for the claims of service connection for bilateral hip disabilities, the Veteran has asserted that a December 2019 VA examination was inadequate because the examiner failed to address secondary service connection. The December 2022 Board remand also found the opinion to be inadequate as it related to the secondary service connection opinions and remanded the claims for new opinions. Pursuant to the Board's remand, the Veteran was afforded an adequate VA examination in October 2023 and the Veteran has not taken issue with this VA examination. As such, there has been substantial compliance with the prior Board remands. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to these claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as provided in § 3.300(c), service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Under 38 C.F.R. § 3.310, secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The Veteran has been diagnosed with bilateral osteoarthritis of the hip; thus, the Veteran has a current disability. As to direct service connection, the in-service element is not satisfied. The Veteran's service treatment records (STRs) are silent for any mention of a hip disability. Moreover, the Veteran has consistently maintained that his bilateral hip disability is the result of his service-connected bilateral ankle disability. In the absence of the in-service element, service connection cannot be granted on a direct basis. Consequently, the claim for service connection on a direct basis must be denied. The Board has also considered whether the Veteran is entitled to service connection under presumptive service connection or continuity of symptomatology. The Board recognizes that arthritis is listed as a chronic disease in § 3.309 and is therefore subject to presumptive service connection. However, there is no indication that the Veteran's arthritis manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran was discharged from active duty in May 1980, and the earliest indication of arthritis occurred approximately 35 years after, in March 2015. Consequently, the Veteran's arthritis did not manifest to a compensable degree within one year of discharge from service. Likewise, the Board has considered and rejects continuity of symptomatology. As explained above, approximately 35 years lapsed since the Veteran's honorable discharge from active duty to the first indication of a hip disability. The Board acknowledges that the Veteran indicated that he experienced hip pain for many years. However, signs or symptoms indicative of a chronic hip disability were not noted in service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). The evidence does not sufficiently identify a disease entity or establish chronicity in service; thus, it is not necessary to further address the evidence regarding continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1339. As to secondary service connection, the Veteran is service connected for bilateral ankle and bilateral knee disabilities; thus, the second element of secondary service connection is met. The remaining and dispositive question is if there is competent nexus evidence establishing a connection between a service-connected disability and the current disability. The Veteran was afforded a VA examination in December 2015. The examiner did not diagnose a left hip disability and stated the Veteran's right hip showed avascular necrosis. The examiner answered in the negative when asked if the Veteran's ankle disability caused his bilateral hip disability. The examiner did not offer an opinion on aggravation. The Veteran was afforded a VA examination in December 2019 and the examiner diagnosed right hip replacement and right hip avascular necrosis. The examiner offered a negative nexus opinion on direct service connection but failed to offer an opinion on secondary service connection. In October 2020, a VA examiner opined that it was less likely than not that the Veteran's bilateral hip disability was caused or aggravated by his service-connected bilateral ankle disability. The examiner's rationale for both opinions was that medical literature did not show that an injury to one joint would have any significant impact on other joints, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis or shortening of the injured limb resulting in leg length discrepancy of more than 5 centimeters so that there is an obvious Trendelenburg gait. The examiner noted that private treatment records reflected a mild antalgic gait that was not significant enough to cause the trauma described. In July 2023, a VA examiner opined that it was less likely than not that the Veteran's bilateral ankle disability caused his bilateral hip disability. The examiner's rationale was that a review of the medical literature does not show any evidence that ankle pain/sprain causes arthritis in the hips. The examiner similarly offered a negative opinion on aggravation. The examiner's rationale was that the Veteran underwent left and right hip surgery for severe osteoarthritis in 2016 but no report of evaluation and treatment of left or right hip pain was found upon review of the records. In October 2023 a VA examiner offered an opinion that it was less likely than not that the service-connected bilateral lower extremity disabilities caused or aggravated the bilateral hip disabilities. The examiner stated that in 2015 the Veteran had an MRI of the right hip which showed avascular necrosis. The examiner explained that the common pathophysiology for all forms of avascular necrosis is lack of blood flow to the bone due to a complete or partial blockage of blood vessels. The examiner added that this results in microfractures, collapse of cancellous bone, and ultimately the collapse of the articular surface. The examiner noted that femoral and humeral heads are the most commonly affected sites of avascular necrosis. The examiner specified that in the Veteran's case, avascular necrosis caused the collapse of the femoral head bone which resulted in the arthritis and malformation of the surface of the bone. The examiner stated the typical end result for avascular necrosis in the hip is a total hip arthroplasty, which the Veteran underwent for his right hip in 2016. The examiner outlined the risk factors of avascular necrosis as being a male, high body mass index, low bone mineral density, leukopenia, recurrent vaso-occlusive pain, acute chest syndrome episodes, systemic steroid use, alcohol use, smoking, hyperlipidemia, cardiovascular disease, and joint trauma. The examiner stated that none of the risk factors for developing avascular necrosis involve pathology in joints in the lower extremities. Concerning the left hip, the examiner stated that in 2019, the Veteran had a normal hip MRI and a normal hip exam. The examiner stated that if arthritis were present in 2019, the MRI would have showed it. The examiner stated that in 2020, the Veteran underwent a left total hip arthroplasty and the medical records after the 2019 left hip MRI are silent for any indication of what occurred in between the 2019 left hip MRI and 2020 left hip arthroplasty. The examiner concluded that the only medical explanation for going from a normal left hip (as documented in the 2019 left hip MRI) to a hip replacement in 2020, would either be a trauma to the left hip or an episode of avascular necrosis in the left hip. The examiner added that either scenario rules out the Veteran's service conditions as a likely cause of his left hip condition. In providing these opinions, the examiner reviewed the medical literature submitted by the Veteran. The examiner noted that the Veteran's gait did not result in issues to his hips. The examiner pointed to the Veteran's avascular necrosis causing the collapse of the Veteran's right femoral head bone, which resulted in a deformity of the shape of the femoral head and was the reason for the Veteran's right hip replacement. The examiner stated that trauma to the left hip or avascular necrosis of the left hip was the cause of the Veteran's left hip disability and that neither avascular necrosis nor trauma are the result of the Veteran's gait. Initially, the Board finds the December 2015 VA examination to be inadequate. The examiner did not diagnose a left hip disability, but the Veteran has a current left hip disability. Additionally, the examiner did not offer an opinion on secondary service connection. The Board finds the December 2019 VA examination report to be inadequate because the examiner failed to offer an opinion on secondary service connection. The Board finds the October 2020 and July 2023 VA examination reports to be inadequate because the examiners' rationales were based solely on referencing general medical literature without discussing the specific facts pertaining to the Veteran's condition. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). The Board concludes that the evidence persuasively weighs against a finding that the Veteran's service-connected bilateral lower extremity disabilities caused his bilateral hip disability. In reaching this conclusion, the Board assigns substantial weight of probative value to the October 2023 VA opinion. The Board affords the October 2023 examiner's conclusion that it was less likely than not that the Veteran's service-connected disabilities caused his bilateral hip disability significant weight of probative value because the examiner's opinion is based on a thorough review of the medical evidence, is well-reasoned, and supported by medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner stated that the Veteran's right hip disability was the product of avascular necrosis, which resulted in lack of blood flow to the bone due to a complete or partial blockage of blood vessels. The examiner noted that femoral and humeral heads are especially suspectable to avascular necrosis and in the Veteran's case this occurred and resulted in a total right hip arthroplasty. Similarly, the examiner pointed to avascular necrosis or a trauma as the cause of the Veteran's left hip disability. The examiner explained that an MRI in 2019 showed the Veteran's left hip to be normal and then the Veteran underwent a hip replacement in 2020. The examiner elaborated that the only medical explanation for going from a normal left hip to a hip replacement in 2020, would either be a trauma to the left hip or an episode of avascular necrosis in the left hip. The examiner reviewed and commented on the medical evidence submitted by the Veteran. Specifically, the examiner stated that the Veteran's gait did not cause his hip disabilities. The examiner pointed to the Veteran's avascular necrosis causing the collapse of the Veteran's right femoral head bone, and trauma to the left hip or avascular necrosis of the left hip as the cause of the Veteran's left hip disability. The examiner added that neither avascular necrosis nor trauma are the result of the Veteran's gait. As such, the Board assigns substantial weight of probative value to the October 2023 VA opinion. As to the Veteran's lay statements that his ankle disabilities caused his hip disability, the Board finds that the Veteran's and other lay evidence is not entitled to any probative weight. The question of whether an ankle or a knee disability results in a hip disability is a complex medical question not capable of lay observation and is not otherwise the type of medical question for which lay evidence is competent evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Generally, lay testimony is not competent to prove that which would require specialized knowledge or training."). In sum, the Board concludes that the evidence persuasively weighs against a finding that the Veteran's service-connected ankle and knee disabilities caused his bilateral hip disability or that his bilateral hip disability was due to service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Thus, service connection is not warranted. REASONS FOR REMAND Service connection for sleep apnea (to include as secondary to service-connected acquired psychiatric disability), entitlement to a rating in excess of 30 percent prior to April 4, 2023, and in excess of 70 percent thereafter for an acquired psychiatric disability, and entitlement to a TDIU prior to April 4, 2023 are remanded. A. VA examination Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("An opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one'"); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions...It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion."). Concerning sleep apnea, the December 2022 Board remand found that the secondary aggravation opinion provided by a VA examiner in October 2020 was inadequate as it provided the same rationale as the secondary causation opinion, and that separate rationales were needed for the causation and aggravation prongs. The Board thus remanded for a new opinion regarding whether the Veteran's psychiatric disorder aggravated the Veteran's sleep apnea. In July 2023, the Veteran was afforded a VA examination and the examiner opined that it was less likely than not the Veteran's sleep apnea was aggravated by the Veteran's service-connected psychiatric disability. The examiner's rationale was that the Veteran was diagnosed with sleep apnea in 2016. The examiner offered an addendum opinion in July 2023. The examiner stated that depression and obstructive sleep apnea often coexist but usually the treatment of sleep apnea improves the outcome of depression. The examiner added that treatment of depression does not improve obstructive sleep apnea. The Board finds the July 2023 opinion and the July 2023 addendum to be inadequate. In both instances the examiner makes conclusory statements about the nature of the Veteran's sleep apnea without offering any real medical rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("[M]ost of the probative value of a medical opinion comes from its reasoning."). As such, the Board finds the July 2023 opinion and the July 2023 addendum to be inadequate. B. Private Treatment Records The Veteran has submitted some private treatment records for his sleep apnea and acquired psychiatric disability. However, it is unclear whether these represent all relevant treatment records from the identified facilities. Because such records, if obtained, might contain information bearing on the Veteran's appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).? C. TDIU An August 2023 rating decision awarded entitlement to TDIU effective April 4, 2023, the date the Veteran's formal claim for TDIU was received by VA. The Veteran's claim for TDIU indicated that he was unemployable due in part to his depression and indicated that he last worked in 2010. Evidence of record during the appeal period for the increased rating claim, including a February 2020 private treatment record, indicates that the Veteran's symptoms included poor energy and concentration that had been ongoing for the past several years. Therefore, the Board finds that the claim seeking entitlement to TDIU was raised by the record in the increased rating appeal before the Board prior to the current April 4, 2023 effective date of the award of TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009); see Harper v. Wilkie, 30 Vet. App. 356 (2018). As the claim for TDIU is inextricably intertwined with the claim seeking an increased rating for the acquired psychiatric disorder, it is also remanded. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from July 2023 to the present. 2. Ask the Veteran to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for any private treatment he has received for his sleep apnea and acquired psychiatric disability, to include from El Paso Sleep Disorder Center, Harecec Complete Healthcare, and El Paso Behavioral Health System. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. After completing the development above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. The examiner is asked to provide opinions on the following questions: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea was aggravated (any increase in the severity or worsening of functionality) by the Veteran's service-connected acquired psychiatric disability? (For aggravation it is enough to show that a nonservice-connected disability would have been less severe but-for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the nonservice-connected disability.) (Continued on the next page) ? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patel, S., 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.