HIP IMPAIRMENT OF

C. BOSELY · 2019 · Case ID: 19143805

MIXED

Summary

The veteran, who served from September 1969 to November 1973, appeals decisions denying service connection for cervical spine, bilateral hip, and bilateral shoulder disabilities, and contesting the effective date and increased rating for his right knee subluxation. The Board granted service connection for trochanteric pain syndrome and degenerative arthritis of both hips, secondary to the veteran's service-connected knee disabilities, and awarded a 20 percent rating for right knee subluxation effective August 25, 2008. However, the Board denied an increased rating for right knee subluxation from March 1, 2009. The claims for cervical spine, left shoulder, and right shoulder disabilities were remanded for further development. The Board noted that the claim for bilateral feet disabilities was no longer on appeal as service connection for bilateral plantar fasciitis had been granted. The Board's reasoning for granting the hip claims focused on the veteran's service-connected knee conditions and the examiner's opinion, despite an initial error in the examiner's factual foundation regarding the onset of the knee disability. The remand for shoulder claims is due to the examiner's incorrect factual basis for the opinion on secondary service connection.

Rationale

Secondary to service-connected knee disabilities; Examiner's factual foundation regarding knee disability onset was incorrect

Special Benefit

NO SPECIAL BENEFIT

Docket No.

10-28 140

Full Decision Text

Citation Nr: 19143805
Decision Date: 06/07/19 Archive Date: 06/06/19

DOCKET NO. 10-28 140
DATE: June 7, 2019

ORDER

Service connection for trochanteric pain syndrome and degenerative arthritis of the left hip, as secondary to the service-connected knee disabilities, is granted.

Service connection for trochanteric pain syndrome and degenerative arthritis of the right hip, as secondary to the service-connected knee disabilities, is granted.

A 20 percent rating since August 25, 2008, for right knee subluxation is granted.

From March 1, 2009, a rating in excess of 20 percent for right knee instability or subluxation is denied.

REMANDED

Service connection for a cervical spine disability.

Service connection for a left shoulder disability.

Service connection for a right shoulder disability.

Service connection for insomnia.

FINDINGS OF FACT

1. The Veteran’s trochanteric pain syndrome and degenerative arthritis of the hips are proximately due to his service-connected knee disabilities.

2. The Veteran’s right knee subluxation is factually ascertainable since August 25, 2008.

3. From March 1, 2009, the Veteran experienced moderate right knee subluxation.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral trochanteric pain syndrome and degenerative arthritis of the hips, as secondary to the service-connected right knee disability, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for an effective date of August 25, 2008 for a 20 percent disability rating for right knee subluxation have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257.

3. From March 1, 2009, the criteria for a rating in excess of 20 percent for right knee subluxation or instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R §§ 3.102, 4.3, 4.7, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1969 to November 1973.

The case is on appeal from May 2012, August 2013, and August 2014 rating decisions. The May 2012 rating decision awarded a 20 percent disability rating for right knee subluxation effective April 20, 2012. The August 2013 rating decision awarded a 100 percent disability rating effective January 28, 2009, based on a right knee surgery and a 20 percent disability rating effective date of March 1, 2009 for right knee subluxation. The August 2014 rating decision denied claims of service connection for disabilities of the cervical spine, bilateral feet, bilateral hips, and bilateral shoulders.

In September 2014, the Board denied appeals for a rating in excess of 10 percent for right knee limitation of motion, a rating in excess of 20 percent for right knee subluxation, a rating in excess of 10 percent for right lower extremity radiculopathy of the femoral nerve, and an effective date prior to January 28, 2009 for right knee subluxation. The Board granted a 10 percent rating for right lower extremity radiculopathy of the sciatic nerve.

The Veteran appealed the Board’s decisions regarding these claims to the United States Court of Appeals for Veterans Claims (Court). In an August 2015 memorandum decision, the Court set aside the Board’s September 2014 decision, in part, and remanded the case for readjudication in compliance with directives specified in the Court’s decision. The August 2015 memorandum decision expressly states that to the extent that the Board’s decision denied higher ratings for right knee limitation of motion and right lower extremity radiculopathy of the femoral nerve, those claims were abandoned, whereas the Board’s decision with regard to the grant of a 10 percent rating for right lower extremity radiculopathy of the sciatic nerve was affirmed. As such, this decision solely addresses an effective date earlier than January 28, 2009, and a rating in excess
August 2015 memorandum decision, the Court set aside the Board’s September 2014 decision, in part, and remanded the case for readjudication in compliance with directives specified in the Court’s decision. The August 2015 memorandum decision expressly states that to the extent that the Board’s decision denied higher ratings for right knee limitation of motion and right lower extremity radiculopathy of the femoral nerve, those claims were abandoned, whereas the Board’s decision with regard to the grant of a 10 percent rating for right lower extremity radiculopathy of the sciatic nerve was affirmed. As such, this decision solely addresses an effective date earlier than January 28, 2009, and a rating in excess of 20 percent from March 1, 2009 for right knee subluxation.

While the claims for service connection for disabilities of the cervical spine, bilateral feet, bilateral hips, and bilateral shoulders were in remand status as result of a May 2016 Board decision, a February 2019 rating decision granted service for bilateral plantar fasciitis. Thus, the bilateral feet claim is no longer on appeal as the benefit sought was granted in full.

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Service Connection

1. Service connection for a left hip disability.

2. Service connection for a right hip disability.

Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310.

In addition, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Background and Facts

The Veteran contends that he has a bilateral hip disability secondary to his service-connected right knee disability. See February 2013 Statement in Support of Claim.

The Veteran submitted a report and opinion prepared by his private chiropractor, Dr. K. J., D.C. in February 2013. Dr. K. examined the Veteran, scanned the Veteran’s feet and biomechanics, and examined x-rays of the Veteran. She opined that it is as least as likely as not that the degenerative joint disease, as shown by x-ray views of his hips are a result of the altered biomechanics due to an altered gait caused by compromised ligaments and medial meniscus of the right knee.

The Veteran underwent a May 2014 VA examination. At that time, the examiner provided a bilateral chondrocalcinosis diagnosis and reported that no degenerative joint disease of the hips was shown on x-ray. The examiner opined that the Veteran’s chondrocalcinosis is less likely than not due to or the result of the Veteran’s service-connected right knee condition. Instead, the examiner attributed the Veteran’s bilateral chondrocalcinosis to occupations since discharge from service and the normal aging process.

As a result of the Board’s May 2016 remand, the Veteran underwent a November 2018 VA examination. At that time, the examiner provided diagnoses including bilateral trochanteric pain syndrome, degenerative arthritis, and chondrocalcinosis. The examiner indicated that the date the Veteran was diagnosed with bilateral degenerative arthritis of the hip was May 2014.

Concerning the Veteran’s bilateral trochanteric pain syndrome and degenerative arthritis of the hips, the examiner determined that it is as least as likely as not that those conditions were caused by the Veteran’s service-connected right and left knee disorders (the Veteran was granted service connection for left knee osteoarthritis in a February 2015 rating decision). The examiner explained that the Veteran’s bilateral trochanteric pain syndrome and degenerative arthritis of the hips was caused by weight-bearing changes to alleviate right knee pain and that Veteran’s right knee condition caused an unbalanced mechanical load which resulted in inflammatory changes in the Veteran’s hips.

With regard to the Veteran’s chondrocalcinosis of the hips, the examiner determined that it is less likely than not
bilateral trochanteric pain syndrome and degenerative arthritis of the hips, the examiner determined that it is as least as likely as not that those conditions were caused by the Veteran’s service-connected right and left knee disorders (the Veteran was granted service connection for left knee osteoarthritis in a February 2015 rating decision). The examiner explained that the Veteran’s bilateral trochanteric pain syndrome and degenerative arthritis of the hips was caused by weight-bearing changes to alleviate right knee pain and that Veteran’s right knee condition caused an unbalanced mechanical load which resulted in inflammatory changes in the Veteran’s hips.

With regard to the Veteran’s chondrocalcinosis of the hips, the examiner determined that it is less likely than not due to or the result of the Veteran’s right knee subluxation. The examiner explained chondrocalcinosis is a metabolism disorder which is seen in patients with calcium pyrophosphate crystal deposition disease arthropathy, which has no causal nexus to subluxation of the right knee.

Analysis

Initially, the evidence of record establishes that the Veteran has a current left and right hip disability. The November 2018 VA examination shows diagnoses including trochanteric pain syndrome, degenerative arthritis, and chondrocalcinosis of both hips.

Concerning trochanteric pain syndrome of the hips, the evidence of record is at least in equipoise on the question of whether service connection is warranted under § 3.310 because the Veteran’s service-connected right knee disability caused this condition. The examiner who provided the November 2018 VA examination determined that it is at least as likely as not that the Veteran’s trochanteric pain syndrome is caused by the Veteran’s service-connected right knee disability due to changes associated with weight bearing due to right knee pain. On this issue, the Board finds the opinion of the examiner who provided the November 2018 opinion to be persuasive and probative, as the rationale for the opinion is based upon accurate facts and sound reasoning and is uncontroverted by any other evidence of record.

Regarding degenerative arthritis of the hips, the evidence of record is also at least in equipoise on the question of whether the Veteran’s service connected right knee disability caused this condition. Both the examiner who provided the November 2018 VA examination and the Veteran’s private chiropractor, Dr. K. determined that it is at least as likely as not that the Veteran’s degenerative arthritis of the hip is caused by altered biomechanics related to the Veteran’s right knee disability. In this case, the Board finds these opinions persuasive and probative regarding this issue. The opinions are based on adequate facts and data, supported by adequate rationale, and are consistent with one another.

In consideration of the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria under 38 C.F.R. § 3.310 for service connection for trochanteric pain syndrome and degenerative arthritis of the hips based on secondary causation by a right knee disability are met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

However, with regard to chondrocalcinosis, the evidence of record weighs against the claim. On this question, both of the examiner who provided the May 2014 and November 2018 VA examinations determined that it is less likely than not that the Veteran’s chondrocalcinosis was due to or the result of the Veteran’s right knee condition. Instead the examiner who provided the May 2014 opinion attributed this condition to occupations since discharge from service and aging, and the examiner who provided the November 2018 examination attributed this condition to a metabolism disorder. Thus, because the examiners who provided these opinions provided an adequate rationale supported by the evidence of record, the Board finds the opinions of significant probative value. Therefore, the preponderance of the evidence is against the claim because the secondary nexus element is not established. The benefit of the doubt doctrine is not applicable and service connection for bilateral chondrocalcinosis of the hips is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Effective Date

3. An effective date earlier than January 28, 2009, for the 20 percent rating for subluxation of the right knee.

Legal Criteria

The effective date of an award based on a claim for increase is generally the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Such a determination will be made on the basis of facts found. 38 C.F.R. §
cinosis of the hips is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Effective Date

3. An effective date earlier than January 28, 2009, for the 20 percent rating for subluxation of the right knee.

Legal Criteria

An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). “[A]n increase in a veteran’s service-connected disability must have occurred during the one-year period prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date.” Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2)). If the increase in disability is shown to have occurred after the date of claim, the effective date is the date of increase. See 38 U.S.C. §5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. §3.400(o)(1); VAOPGCPREC 12-98 (1998).

Under DC 5257, a disability rating of 10 percent is assigned for slight recurrent subluxation or lateral instability, and a disability rating of 20 percent is assigned for moderate recurrent subluxation or lateral instability. A disability rating of 30 percent is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257.

Facts and Analysis

The Veteran is seeking an effective date for the award of a 20 percent rating prior to January 28, 2009. A May 2012 rating decision awarded a 20 percent disability rating for right knee subluxation effective April 20, 2012. An August 2013 rating decision awarded a 100 percent disability rating effective January 28, 2009 based on a right knee surgery.

The Veteran filed a formal claim for an increased rating for his service-connected right knee disability, which was received by the RO on November 3, 2008. He stated that he was having increased difficulties with his knee and was being scheduled for orthoscopic surgery.

However, the Board finds that there was an outstanding claim prior to the November 3, 2008 claim. In this regard, in August 2008, the Veteran submitted a notice of disagreement to a July 2007 rating decision. That rating decision awarded an increased rating of 10 percent for degenerative changes of the right knee, with limitation of motion; history of Osgood-Schlatter disease, post-operative, effective January 9, 2007. The Veteran was notified of that decision on July 23, 2007, but did not initiate an appeal within the one-year period following that date, as his notice of disagreement was dated August 21, 2008 and was received by VA on August 25, 2008. Therefore, the July 2007 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

In the Veteran’s August 25, 2008 written statement, he argued that “VA has not given consideration to the application of DC 5257, for recurrent subluxation or lateral instability of the [V]eteran’s knee. The [V]eteran has reported the knee giving way 10 to 15 times each month, which is reflective of moderate or severe subluxation or lateral instability.” The Board liberally interprets this August 25, 2008 written statement as an informal claim for an increase rating for his service-connected right knee disability. Therefore, the date of the
. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

During a June 2007 VA examination, the Veteran reported that his right knee gave way approximately 10 to 15 times a month. He also reported that he did not use any assistive devices at that time or experience any episodes of dislocation or recurrent subluxation. With regard to stability testing, the VA examiner noted that all stability testing including anterior drawer, posterior drawer, Lachman’s test, and McMurry’s test was negative.

A September 2008 private treatment report from Dr. D.S. noted the Veteran’s complaint of right knee pain and an impression of internal derangement of the right knee, possibly meniscus pathology or osteoarthritis. However, according to the September 2008 private treatment reports, the Veteran’s right knee ligaments were stable.

A September 2008 VA treatment record shows that the at that time the Veteran’s right knee was ligamentously stable but there was a positive McMurray’s sign.

In a November 2008 lay statement, the Veteran reported that he was scheduled for surgery to repair a torn meniscus.

The Veteran underwent a January 2009 VA examination. The examination report includes October 2008 MRI results indicating the Veteran’s anterior and posterior cruciate ligaments were intact but there was thickening of the medial collateral ligament had mild inflammatory changes surrounding the medial collateral ligament which is compatible with chronic sprain. It also showed that the lateral collateral ligament and biceps femoris tendon and popliteus tendon were intact. The MRI also indicated that the Veteran had a torn meniscus. The Veteran reported daily instability and giving way without the use of a brace. The examiner reported that there was no objective evidence of instability and all ligaments were stable. However, the examiner noted that a McMurray’s test revealed a positive result. With regard to the right knee, the examiner noted diagnoses of degenerative arthritis, torn medial meniscus, and chronic mild medial collateral ligament sprain.

After a review of the record, the Board finds the August 25, 2008 claim date to be the earliest date which an increase in disability is factually ascertainable, particularly when reasonable doubt is resolved in the Veteran’s favor. Evidence of instability is shown only a few days later in a September 9, 2008 VA treatment record that shows a positive McMurray’s test result.

In assigning this effective date, the Board considered whether it was factually ascertainable that there was an increase in disability in the year prior to the August 25, 2008 claim date. The Board acknowledges the Veteran’s lay statements regarding his knee giving out 10 to 15 times a month during his June 2007 VA examination. The Board notes that the Veteran is competent to describe the symptoms he feels and observes. However, in this case, the Board finds the determination of the VA examiner, who determined stability testing was negative, made after review of the Veteran’s records and statements, and a physical examination, to be significantly more probative than the Veteran’s lay assertions. English v. Wilkie, 30 Vet. App. 347, 353 n.6 (2018). Moderate lateral instability implies a specific type and degree of instability demonstrated by clinical laxity such as Lachman’s, McMurray’s, and drawer tests, as well as varus and valgus testing. Such clinical laxity was absent from the June 2007 VA examination. In this case, greater evidentiary weight is placed on the June 2007 physical examination findings, which showed negative instability testing, than the Veteran’s lay statements.

Accordingly, an effective date of August 25, 2008, but no earlier, for the award for right
the Veteran’s lay assertions. English v. Wilkie, 30 Vet. App. 347, 353 n.6 (2018). Moderate lateral instability implies a specific type and degree of instability demonstrated by clinical laxity such as Lachman’s, McMurray’s, and drawer tests, as well as varus and valgus testing. Such clinical laxity was absent from the June 2007 VA examination. In this case, greater evidentiary weight is placed on the June 2007 physical examination findings, which showed negative instability testing, than the Veteran’s lay statements.

Accordingly, an effective date of August 25, 2008, but no earlier, for the award for right knee lateral instability is warranted.

Increased Rating

4. A rating in excess of 20 percent for subluxation of the right knee from March 1, 2009.

Legal Criteria

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Facts and Analysis

A March 2009 VA treatment record indicates that two weeks after undergoing a right knee arthroscopy in January 2009, the Veteran complained of patellar subluxation. At the time of his follow-up appointment in March, the Veteran reported that it had resolved.

The Veteran underwent an April 2012 VA examination. At that time, the examiner noted a moderate history of recurrent patellar subluxation/dislocation of the right knee. However, joint stability testing revealed normal results. The Veteran denied experiencing flare-ups.

The Veteran underwent a November 2012 VA examination. At that time, joint stability testing revealed normal results.

The Veteran underwent a July 2016 VA examination. At that time, the Veteran reported weakness after repeated use over time which resulted in falls. The examiner reported no history of recurrent subluxation or lateral instability and joint stability testing revealed normal results. With regard to flare-ups, the Veteran reported that every two to three months he experienced weakness in his knees. He stated that when he experienced flare-ups, it did not stop or prevent any activities.

A December 2016 VA treatment record indicates that he denied knee buckling or falls. Ligamentous testing was normal with no laxity on Lachman’s, anterior/posterior drawer testing, varus/valgus testing, and negative McMurray’s testing.

The Veteran underwent a March 2017 VA examination
At that time, the Veteran reported weakness after repeated use over time which resulted in falls. The examiner reported no history of recurrent subluxation or lateral instability and joint stability testing revealed normal results. With regard to flare-ups, the Veteran reported that every two to three months he experienced weakness in his knees. He stated that when he experienced flare-ups, it did not stop or prevent any activities.

The Veteran underwent a March 2017 VA examination that included joint stability testing. The examiner noted that there was no history of recurrent subluxation or lateral instability. Joint stability testing revealed normal results. The Veteran denied experiencing flare-ups.

The Veteran underwent a November 2018 VA examination. The examiner reported that there was no history or recurrent subluxation or a history of lateral instability. Joint stability testing showed normal results. After reviewing the Veteran’s records and considering the Veteran’s statements regarding his symptoms, the examiner opined that the Veteran did not have subluxation or instability of the right knee. The Veteran characterized flare-ups as causing increased pain.

In this case, the Board finds a rating in excess of 20 percent is not warranted for recurrent subluxation or lateral instability of the right knee as the preponderance of the evidence shows no more than moderate impairment. In order to warrant a 30 percent rating, the evidence must show severe, recurrent subluxation or lateral instability. Moderate lateral instability implies a specific type and degree of instability demonstrated by clinical laxity, such as Lachman’s, McMurray’s, and drawer tests, as well as varus and valgus testing. Such a finding is absent from the evidence of record. With regard to joint stability testing, the April 2012, November 2012, July 2016, March 2017, and November 2018 VA examination all show normal results. In addition, a December 2016 VA treatment record indicates that that Veteran denied knee buckling or falls and stability testing was normal.

In addition, the Board considered whether a 30 percent rating is warranted based on functional loss due to flare-ups. However, the Veteran denied experience flare-ups during the April 2012 and March 2017 VA examinations. Although the Veteran reported experiencing flare-ups related to stability earlier at the July 2016 VA examination, he also reported that flare-ups did not stop or prevent any activities. This statement is inconsistent with severe, recurrent subluxation or lateral instability that is required for a 30 percent disability rating.

Given, the above, the Board cannot conclude that there is an impairment of a degree so great that it would approximate a severe level of impairment. As such, the Veteran does not have a severe, recurrent subluxation or lateral instability of his right knee, and so a rating in excess of 20 percent is not warranted under DC 5257.

REASONS FOR REMAND

1. Service connection for a cervical spine disability.

The Veteran contends that he has a neck disability that is secondary to his service-connected right knee disability. See February 2013 Statement in Support of Claim.

A November 2018 VA examination showed current diagnoses including degenerative joint disease, degenerative disc disease, and radiculopathy of the cervical spine. Concerning whether the Veteran’s current cervical spine disabilities are secondary to his service-connected knee disabilities, the examiner determined that it is less likely than not that the Veteran’s right knee subluxation caused the Veteran’s cervical spine condition.

This examiner did not address whether the diagnosis may be aggravated by a service-connected disability. As such, a new opinion is needed on remand to consider the whether the Veteran’s cervical spine disability is was aggravated by his service-connected right knee disability.

In addition, the Veteran was granted service connection for lumbar spine arthritis in a May 2012 rating decision and a left knee disability in a February 2015 rating decision. Thus, an opinion is needed on remand to determine whether the Veteran’s cervical spine disability is secondary to his service-connected lumbar spine arthritis and/or his left knee disability.

2. Service connection for a left shoulder disability.

3. Service connection for a right shoulder disability.

The Veteran contends that he has a shoulder disability secondary to his service-connected right knee disability. See February 2013 Statement in Support of Claim.

With regard to a current disability, a November 2018 VA examination notes bilateral shoulder diagnoses including bicipital tendonitis and acromioclavicular joint osteoarthritis.
arthritis in a May 2012 rating decision and a left knee disability in a February 2015 rating decision. Thus, an opinion is needed on remand to determine whether the Veteran’s cervical spine disability is secondary to his service-connected lumbar spine arthritis and/or his left knee disability.

2. Service connection for a left shoulder disability.

3. Service connection for a right shoulder disability.

The Veteran contends that he has a shoulder disability secondary to his service-connected right knee disability. See February 2013 Statement in Support of Claim.

With regard to a current disability, a November 2018 VA examination notes bilateral shoulder diagnoses including bicipital tendonitis and acromioclavicular joint osteoarthritis. Concerning whether the Veteran’s bilateral shoulder disability is secondary to his service-connected knee disabilities, the VA examiner who provided a November 2018 VA examination determined that it is less likely than not that the Veteran’s bilateral shoulder disability is proximately due to or the result of the Veteran’s service-connected right knee subluxation or left knee osteoarthritis. The examiner based this opinion on a September 2012 diagnosis of right knee subluxation.

The examiner’s factual foundation was incorrect. The Veteran’s knee disability was initially diagnosed in 1972 and was granted service connection in 1975. As such, a new opinion is needed on remand to consider the whether the Veteran’s shoulder disability is secondary to his right knee disability as it began in 1972, not 2012.

In addition, the Veteran submitted a report and opinion prepared by his private chiropractor, Dr. K. J., D.C. in February 2013. The report indicated that the Veteran experienced “dropped shoulders” as a compensation for imbalances of the lower and upper parts of the spine. The Veteran was granted service connection for lumbar spine arthritis in a May 2012 rating decision. Thus, an opinion is needed on remand to determine whether the Veteran’s shoulder disability is secondary to his service-connected lumbar spine arthritis.

4. Service connection for insomnia.

A May 2018 rating decision denied a claim of service connection for insomnia The Veteran filed a rating decision later that month. A statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

The matter is REMANDED for the following action:

1. Obtain updated treatment records dated since February 2019.

2. Thereafter, schedule the Veteran for a VA examination to assess the etiology of his cervical spine disability.

(a.) The examiner must opine as to whether the Veteran’s cervical spine disability is at least as likely as not (50 percent or greater) related to an in-service injury, event, or disease.

(b.) The examiner should also opine on whether it is at least as likely as not (50 percent or greater) that the Veteran’s cervical spine disability is caused by, or aggravated, by the Veteran’s service-connected right knee disability, left knee disability, and/or lumbar spine disability, or any other medical condition. If so, the examiner should identify the primary medical condition.

3. Schedule the Veteran for a VA examination to assess the etiology of his shoulder disability.

(a.) The examiner must opine as to whether the Veteran’s shoulder disability is at least as likely as not (50 percent or greater) related to an in-service injury, event, or disease.

(b.) The examiner should also opine on whether it is at least as likely as not (50 percent or greater) that the Veteran’s shoulder disability is caused by, or aggravated, by the Veteran’s service-connected right knee disability (which began in 1972), left knee disability, and/or lumbar spine disability, or any other medical condition. If so, the examiner should identify the primary medical condition.

4. Provide an SOC to the Veteran regarding the issue of service connection for insomnia. Return the issue to the Board only if the Veteran perfects a timely appeal.

COREY BOSELY

Acting Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD E. Gray

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.

Veteran regarding the issue of service connection for insomnia. Return the issue to the Board only if the Veteran perfects a timely appeal.

COREY BOSELY

Acting Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD E. Gray

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