Case A25002400

S. F. KEANE · 2025 · Case ID: A25002400

MIXED

Summary

The Veteran, a Marine Corps Veteran who served from October 1972 to July 1975, appeals the denial of an increased rating for his MDD, left foot fracture residuals with degenerative arthritis, and TDIU. The Veteran also sought earlier effective dates for his MDD and SMC housebound status. The Board granted an earlier effective date of January 7, 2020, for the 70 percent evaluation of MDD, finding the Veteran continuously pursued the claim since that date and that his symptoms approximated the 70 percent criteria. The Board denied an increased rating for the left foot fracture, concluding the evidence did not support a rating higher than 10 percent, as the Veteran's pain was intermittent and primarily associated with weight-bearing, and the evidence did not demonstrate severe functional impairment. The Board granted an earlier effective date of December 15, 2021, for SMC housebound status, as the Veteran met the criteria with his 100 percent rating for Non-Hodgkin's Lymphoma and 70 percent rating for MDD, with the earlier effective date for MDD making the SMC grant earlier. The claims for service connection for left and right hip strain, secondary to the left foot fracture, and TDIU were remanded. The Board found duty to assist errors in obtaining adequate medical opinions for the hip claims and noted the TDIU claim was inextricably intertwined with the hip claims.

Rationale

Veteran continuously pursued claim since January 7, 2020.; MDD symptoms approximated 70 percent rating criteria.; Granted earlier effective date for 70 percent MDD evaluation.

Service Branch

MARINE CORPS

Special Benefit

SMC - HOUSEBOUND; TDIU; EARLIER EFFECTIVE DATE

Docket No.

230424-340943

Full Decision Text

Citation Nr: A25002400
Decision Date: 01/10/25 Archive Date: 01/10/25

DOCKET NO. 230424-340943
DATE: January 10, 2025

ORDER

Entitlement to an earlier effective date of January 7, 2020, but no earlier, for the 70 percent evaluation of major depressive disorder (MDD) is granted.

Entitlement to an increased disability rating in excess of 10 percent for residuals of left foot fracture with degenerative arthritis is denied.

Entitlement to an earlier effective date of December 15, 2021, but no earlier, for the grant of entitlement to special monthly compensation (SMC) based on housebound status is granted.

REMANDED

Entitlement to service connection for left hip, to include as secondary to the service-connected left foot fracture with degenerative arthritis, is remanded.

Entitlement to service connection for right hip strain, to include as secondary to the service-connected left foot fracture with degenerative arthritis, is remanded.

Entitlement to total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. Since January 7, 2020, the Veteran's MDD symptoms manifested as difficulty in adapting to stressful circumstances including a work or work like setting and inability to establish and maintain effective relationships.

2. The Veteran's left foot fracture is manifested by no more than moderate symptoms.

3. Effective December 15, 2021, the Veteran is in receipt of a 100 percent disability rating for Non-Hodgkin's Lymphoma and 70 percent disability rating for MDD.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an earlier effective date of January 7, 2020, but no earlier, for the 70 percent evaluation of MDD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155(a), 3.400, 4.3, 4.130, Diagnostic Code 9434.

2. The criteria for entitlement to an increased disability rating in excess of 10 percent for residuals of left foot fracture with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5284.

3. The criteria for entitlement to an earlier effective date of December 15, 2021, but no earlier, for SMC on housebound status have been met. 38 U.S.C. §§ 1114, 5101, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155(a), 3.350, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Marine Corps from October 1972 to July 1975.

Procedurally, the Veteran filed a claim for benefits on January 7, 2020. In a March 2020 rating decision, the Region Office (RO) denied an increased evaluation in excess of 30 percent for MDD and denied service connection for bilateral hip condition. In September 2020, the Veteran filed a claim for TDIU using VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In September 2020, the Veteran filed a supplemental claim on VA form 20-0995 in response to the March 2020 rating decision. In a September 2020 rating decision, the RO continued to deny the claim for bilateral hip condition.

In October 2020, the Veteran filed a request for higher level review using VA Form 20-0996 of the September 2020 rating decision. In a November 2020 rating decision, the RO denied an increased evaluation for MDD and left foot fracture and denied TDIU. In December 2020, the Veteran filed another request for higher level of the November 2020 rating decision. In February and March 2021, a duty to assist error was identified during the pending October 2020 and December 2020 requests for higher level review. In a June 2021 rating decision, an increased evaluation for MDD and left foot fracture and entitlement to TDIU were denied. In June 2021, the Veteran filed a request for higher level review of the June 2021 rating decision. Subsequently, in a July
decision. In a November 2020 rating decision, the RO denied an increased evaluation for MDD and left foot fracture and denied TDIU. In December 2020, the Veteran filed another request for higher level of the November 2020 rating decision. In February and March 2021, a duty to assist error was identified during the pending October 2020 and December 2020 requests for higher level review. In a June 2021 rating decision, an increased evaluation for MDD and left foot fracture and entitlement to TDIU were denied. In June 2021, the Veteran filed a request for higher level review of the June 2021 rating decision. Subsequently, in a July 2021 rating decision, the RO continued to deny service connection for bilateral hip condition.

In August 2021, the Veteran filed a request for higher level review of the July 2021 rating decision. In August 2021, the RO issued the higher-level review rating decision and continued to deny service connection for bilateral hip condition. A higher-level review rating decision was also issued in August 2021 which continued to deny an increased evaluation for MDD and left foot fracture and entitlement to TDIU. Again, in August 2021, the Veteran filed a request for higher level review disputing the denial for the bilateral condition. In December 2021, the Veteran filed a supplemental claim following issuance of the August 2021 rating decision denying increased evaluations for MDD and left foot fracture and entitlement to TDIU.

In January 2022, the RO continued to deny service connection for bilateral hip condition. In March and April 2022 rating decisions, the RO granted an increased evaluation of 70 percent from January 28, 2022, for MDD but continued to deny an evaluation in excess of 10 percent for left foot fracture and entitlement to TDIU. In a May 2022 rating decision, SMC was granted from January 28, 2022. In January 2023, the Veteran filed a request for higher level review of the January 2022, March 2022, April 2022, and May 2022 rating decisions. In an April 2023 rating decision, the RO denied earlier effective dates for the 70 percent evaluation of MDD and SMC, increased evaluation in excess of 10 percent for left foot fracture, service connection for bilateral hip condition, and TDIU. In April 2023, the Veteran filed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), requesting the Board's appellate jurisdiction under the Direct Review docket.

Based on the Veteran's choice to pursue the direct review lane, the Board can only consider evidence at the time of the January, March, April, and May 2022 rating decisions. Accordingly, no additionally submitted evidence may be considered.

Earlier Effective Date

Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

The Veterans Appeals Improvement and Modernization Act of 2017 (AMA) allows claimants to continuously pursue claims. Under the AMA, section 5110 allows for an effective date as early as the initial application for benefits whenever the claimant continuously pursues a claim, which includes filing a supplemental claim on or before the date that is one year after the date on which the AOJ issues a decision. 38 U.S.C. § 5110 (a)(2)(B); 38 C.F.R. § 3.2500(c).

Increased Ratings

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disability incurred or aggravated during service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and explain the reasons and bases for conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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
ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disability incurred or aggravated during service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and explain the reasons and bases for conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern, it is a factual determination. See Francisco v. Brown, 7 Vet. App. 55 (1994).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

1. Entitlement to an earlier effective date of January 7, 2020, but no earlier, for the 70 percent evaluation of MDD is granted.

The Veteran seeks an earlier effective date for the award of a 70 percent evaluation assigned for his MDD from January 28, 2022. The Veteran has been in receipt of a 30 percent evaluation prior to that date.

The Veteran filed an increased rating claim for his MDD on January 7, 2020, which was evaluated as 30 percent disabling. A March 2020 rating decision denied the increased rating and the Veteran filed a supplemental claim in September 2020 disputing the evaluation of his MDD. A November 2020 rating decision continued to deny the increase and in December 2020 he filed a request for higher level review. In June 2021, the higher-level review rating decision was issued and continued to deny an increased evaluation for MDD. In June 2021, he filed another higher-level review of that rating decision, and the claim was denied again in an August 2021 rating decision. In December 2021, the Veteran filed a supplemental claim, and in a March 2022 rating decision the evaluation for MDD was increased to 70 percent effective January 28, 2022, the date of examination. In January 2023, the Veteran requested higher level review of that rating decision seeking an earlier effective date of the assigned evaluation, which was denied in an April 2023 rating decision.

Thus, the Veteran has continuously pursued the claim since January 7, 2020. The Board also finds that the criteria for the 70 percent rating have been met or more closely approximated since that date.

The Veteran's MDD is evaluated under Diagnostic Code 9434, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a).

Under the provisions for rating psychiatric disorders, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent
The Board also finds that the criteria for the 70 percent rating have been met or more closely approximated since that date.

Under the provisions for rating psychiatric disorders, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id.

A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id.

The use of the term "such as" demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, hence the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).

A January 2020 VA examination was obtained. The examination demonstrated the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported avoidance of family, friends, and neighbors, issues with co-workers and bosses, and lack of interest in dating. The Veteran also reported occasional audio-visual hallucinations, but the examiner indicated the Veteran's description did not amount to hallucinations because he is not psychotic. He also indicated that he had fleeting thoughts of suicide in the past. The examination demonstrated symptoms of depressed mood.

An October 2020 VA examination was provided. The examination demonstrated the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported that he lived alone and not currently working. He also reported reports audio-visual hallucinations, to include hearing and seeing demons. He reported daily suicidal/homicidal ideations.

VA treatment records in February 2021 demonstrate the Veteran had chronically depressed mood, daily, and thoughts of suicide for decades. See December 2021 CAPRI.

In December 2021, the Veteran submitted lay statements describing his psychiatric symptoms. He reported that his depression completely impaired his ability to live a normal life and endorsed symptoms of irritability, anger, bitterness, and thoughts of harm to others. He also reported disturbance in sleep, inability to maintain relationships with family, friends, and coworkers, paranoia, short term memory impairment, hypervigilance, and suicidal ideations. The Veteran indicated that he stopped seeking further psychiatric care due to fears of being placed in rehabilitation and/or physical restraint. See December 2021 Affidavit.

Based on all the evidence of record, the
daily, and thoughts of suicide for decades. See December 2021 CAPRI.

Based on all the evidence of record, the Board finds the frequency, severity, and duration of the Veteran's symptoms since January 7, 2020, more closely approximate a 70 percent rating, social and occupational impairment in most areas, such as work, school, family relations, judgment, thinking, or mood. Throughout the period on appeal, the Veteran variously endorsed passive thoughts of suicidal ideation and harm to others, as well as difficulty adapting to stressful circumstances and maintaining effective relationships. VA treatment records and examinations consistently showed the Veteran also had symptoms of continuous depression and symptoms associated with a 70 percent evaluation.

The Veteran has continuously pursued his claim since January 7, 2020, and his MDD symptoms more closely approximate a 70 percent rating since that date. The claim for an effective date of January 7, 2020, is granted.

2. Entitlement to an increased disability rating in excess of 10 percent for residuals of left foot fracture with degenerative arthritis is denied.

The Veteran contends that his left foot fracture is more severe than contemplated by the assigned evaluation.

The Veteran's left foot disorder is rated under DCs 5003-5284. See 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals. 388 C.F.R. § 4.27. In this case, DC 5003 refers to degenerative arthritis, substantiated by x-ray findings, while the more specific DC 5284 refers to other foot injuries.

DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, there are no specific diagnostic codes for limitation of motion of the feet. Ratings based on arthritis cannot be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, DC 5003.

Under DC 5284, a 10 percent rating is assigned for a moderate foot disability, a 20 percent rating is assigned for moderately severe foot disability, and a maximum 30 percent rating is assigned for severe foot disability. A 40 percent rating is assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284.

The words moderate, moderately severe, and severe are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.

The Board notes that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.7 (a) were amended effective February 7, 2021. The rating criteria under DC 5284 for "other" foot injuries, however, was not amended.

An October 2020 VA examination was provided. The examination demonstrated a diagnosis for degenerative arthritis, residuals of left foot fracture. The Veteran did not report pain, flare ups, or functional loss of his foot. There was no evidence of pes planus, Morton's neuroma, hammer toe, hallux vagus, hallux rigidus, acquired pes cavus, or malunion/nonunion of tarsal bones. Upon objective findings, the examination did not evidence pain, functional loss, or limitation of motion.

In a September 2020 TDIU application, the Veteran reported his left foot fracture prevented him from securing employment.

A January 2022 VA examination was obtained. The Veteran reported sharp burning pain, flare ups, and functional loss described as severe burning/sharp pain, limited range of motion, and stiffness all day. The examination demonstrated moderate left foot pain, compromising weight bearing activities and requiring occasional arch supports. The examination also demonstrated less movement than normal, weakened movement, pain, weakness, and fatigue in the left foot. There was no evidence of pes planus, Morton's neuroma, hammer toe, hallux vagus, hallux rigidus, acquired pes cavus, or malunion/nonunion of tarsal bones. The examiner indicated there was evidence of pain upon passive and active range of motion and upon weight bearing. The examiner noted that the Veteran's history of degenerative arthritis caused limitation of motion, hence the presence of pain upon range of motion and any weight bearing activity. Upon functional impact, the examiner noted the presence of poor endurance, non-tolerance, and weakness with activity and non-weight bearing.

Based on the evidence of record, the Board finds a rating higher than 10 percent is not warranted under DC 5284 as the lay and medical evidence of record does not indicate or suggest that the Veteran's left foot condition was manifested by severe symptoms or resulted in a severe functional impairment. Indeed, the evidence shows the Veteran's left foot pain is shown to flare-up at periods during the appeal and limit the Veteran's activities. However, the Board finds the probative evidence shows the Veteran's pain is intermittent and occurs primarily with weight-bearing activity.

In evaluating this claim, the Board has considered other DCs pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the U.S. Court of Appeals for the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under DCs which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). However, other DCs are not relevant to this case and are not applicable.

In conclusion, the Board finds the evidence persuasively weighs against the grant of a rating in excess of 10 percent at any point during the appeal period. As such, the Board finds the benefit of the doubt doctrine is not applicable and the Veteran's claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. Entitlement to an earlier effective date of December 15, 2021, but no earlier, for the grant of entitlement to SMC based on housebound status is granted.

The Veteran asserts that the effective date of his SMC should predate January 28, 2022.

VA has a well-established duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim").

SMC benefits by reason of being housebound are payable if the Veteran has a single permanent disability rated 100 percent disabling, and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3
MC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim").

SMC benefits by reason of being housebound are payable if the Veteran has a single permanent disability rated 100 percent disabling, and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The disability or disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and must involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i)(1).

The Veteran's current effective date of the grant of SMC pursuant to 38 C.F.R. § 3.350 (i)(1) is January 28, 2022, based on the Veteran's 100 percent evaluation for his service-connected Non-Hodgkin's Lymphoma and a 70 percent evaluation for MDD. However, the Board, in this decision, has issued a new earlier effective date of January 7, 2020, for the service connected MDD. As such an earlier effective date for SMC is warranted.

Accordingly, the appropriate effective date for SMC is December 15, 2021, the date he now meets the criteria under 38 C.F.R. § 3.350 (i)(1). The claim is granted.

REASONS FOR REMAND

1. Entitlement to service connection for left hip strain, to include as secondary to the service-connected left foot fracture with degenerative arthritis, is remanded.

2. Entitlement to service connection for right hip strain, to include as secondary to the service-connected left foot fracture with degenerative arthritis, is remanded.

The Veteran contends that his bilateral hip condition is related to service, to include as secondary to the service-connected left foot fracture with degenerative arthritis.

A February 2020 VA examination was obtained. The examination did not demonstrate a current diagnosis for a hip condition. The Veteran reported burning, stinging, and pulling pain from his feet to his hips. The examiner provided a negative nexus opinion and concluded the hip condition is not proximately due to his service-connected left foot fracture. In support, the examiner reasoned that there is no medical nexus establishing causality between the current left hip complaints and service or the service-connected left foot fracture. The examiner indicated the Veteran is fully ambulatory without assistance and has been a truck driver for 40 years. Additionally, the examiner noted that while the Veteran's foot condition may have changed his gait and walking ability, there is no clear evidence his left foot condition caused his left hip pain.

In a September 2020 statement, the Veteran reported his left hip injury is due to the lack of treatment for his left knee, ankle, and foot injury, with onset of pain roughly four or five years prior. He indicated that his private doctor indicated that other injuries on his left side caused the deterioration and pain in his left hip. See September 2020 Affidavit.

A December 2021 VA examination was obtained. The examination demonstrated a diagnosis for bilateral hip strain. The Veteran reported onset of left hip symptoms over 30 years prior and right hip symptoms 5 to 10 years prior. He attributed shooting hip pain due to his left fractured foot and ankle. The examiner provided a negative nexus opinion and determined the Veteran's bilateral hip condition is not proximately due to this service-connected left foot fracture. In support, the examiner reasoned that the bilateral hip strain and left fractured foot are not medically related. Additionally, the examiner noted that medical literature fails to demonstrate a causal relationship. The examiner also concluded it is less likely as not the left foot aggravated the left hip beyond natural progression as there is no evidence the left foot altered gait mechanics to a degree significant enough to cause hip injury.

Finally, examiner concluded it is less likely than not the left foot caused obesity. The examiner reasoned that the Veteran was a truck driver for 40 years and that according to the CDC, truck drivers were twice as likely to be obese, compared to other US workers, and do not get the recommended amount of physical activity. The examiner noted the Veteran has a significant knee disability requiring surgical intervention and it is well documented in medical record that he has had persistent knee complaints, which is a large contributing factor to obesity. The examiner also cited to medical
also concluded it is less likely as not the left foot aggravated the left hip beyond natural progression as there is no evidence the left foot altered gait mechanics to a degree significant enough to cause hip injury.

Finally, examiner concluded it is less likely than not the left foot caused obesity. The examiner reasoned that the Veteran was a truck driver for 40 years and that according to the CDC, truck drivers were twice as likely to be obese, compared to other US workers, and do not get the recommended amount of physical activity. The examiner noted the Veteran has a significant knee disability requiring surgical intervention and it is well documented in medical record that he has had persistent knee complaints, which is a large contributing factor to obesity. The examiner also cited to medical literature evidencing a link between osteoarthritis in the knees and the adjacent weight bearing joints. The examiner also explained how truck driving affects posture and immobility.

Notably, the examiner attributed the Veteran's bilateral hip complaints to obesity, knee complaints, and history as a truck driver.

While the Board regrets the additional delay, there is no adequate medical opinion of record addressing direct service connection. The AOJ's failure to obtain a direct service connection opinion is a pre-decisional duty to assist error. 38 U.S.C. § 5103A; 38 C.F.R. § 20.802. The Board finds this claim must be remanded to correct the pre-decisional duty to assist error and to obtain an adequate medical opinion regarding direct service connection.

3. Entitlement to TDIU is remanded.

Because a decision on the other issues being remanded could impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Remand of the claim for TDIU is required pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from the examiner who conducted the December 2021 examination, or another appropriate clinician. The examiner providing the opinion must have access to the electronic claims file and indicate review of the file in the examination report. The claims folder and a copy of this remand in its entirety must be provided to the examiner in conjunction with the addendum opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's STRs, post-service medical records, and lay statements; the examiner must indicate on the examination report that such review was undertaken. If examination of the Veteran is necessary, such should be arranged.

The examiner should determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) the Veteran's bilateral hip strain is related to active service.

The examiner must consider the Veteran's lay statements regarding onset and progression of his condition.

The examiner must provide a rationale in support of all opinions provided. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so.

S. F. Keane

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Y.Asfaw, 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.

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