Citation Nr: 1503129 Decision Date: 01/22/15 Archive Date: 01/27/15 DOCKET NO. 12-29 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for thoracic outlet syndrome. 3. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected disability. 4. Entitlement to service connection for bilateral hip disability, to include as secondary to a service-connected disability. 5. Entitlement to service connection for bilateral knee disability, to include as secondary to a service-connected disability. 6. Entitlement to an initial disability rating in excess of 10 percent for a right ankle sprain. 7. Entitlement to an initial compensable disability rating for residuals of left inguinal hernia, status post herniorrhaphy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Huntington, West Virginia. The Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge in March 2014. A transcript of this hearing was prepared and associated with the claims file. The Board has reviewed the Veteran's electronic claims files (in both Virtual VA and the Veterans Benefits Management System). Additional documents associated with the Veteran's electronic claims file have been reviewed and are either duplicative of evidence of record or do not pertain to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the record discloses further development is needed with respect to the Veteran's claims of service connection for thoracic outlet syndrome, left ankle disability, bilateral hip disability, bilateral knee disability, and COPD; increased rating claims for a right ankle disability and residuals of left inguinal hernia. I. Increased Rating Claims The Veteran contends that his right ankle sprain and residuals of a left inguinal hernia are worse than the disability ratings currently assigned. The Veteran was last afforded a VA examination to assess his residuals of a left inguinal hernia in April 2011 and a VA examination to assess his right ankle sprain in November 2012. At the March 2014 hearing, the Veteran reported that his right ankle condition continued to worsen. The Veteran stated that he fell a lot due to his ankle instability. He also stated that the VA Medical Center was going to try to fix the tendons in his ankle to prevent him from falling. Additionally, in regards to residuals of a left inguinal hernia, the Veteran reported that his hernia surgery caused him to be infertile. He also testified that the scar from his surgery was painful, tender, burning, and pulling on the skin. In this particular case, the April 2011 and November 2012 VA examinations are too remote in time to address the current severity of the Veteran's service-connected right ankle sprain and residuals of a left inguinal hernia, as the Veteran has reported worsening of his symptoms. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand these matters to afford the Veteran an opportunity to undergo VA examinations to assess the current nature, extent and severity of his right ankle sprain and residuals of a left inguinal hernia. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). II. Service Connection Claims A. COPD The Veteran contends that his COPD is the result of being around smokers in-service. Initially, the Board notes that VA and private treatment records show a diagnosis of COPD. Additionally, the Veteran testified that his roommates in the barracks in-service were smokers. He also stated that he had breathing problems in-service. Additionally, he reported that he was exposed to smokers for at least three years. Furthermore, he reported that he had problems breathing right after service, but was first put on breathing medications about 10 years ago. He also testified that he never smoked and no one in his family was a smoker. He reported that his VA and civilian doctors told him his COPD was attributed to secondhand smoke. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2014). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Although the Veteran has provided competent reports of an in-service incident and a current diagnosis and treatment for COPD, VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of the Veteran's COPD. Although the Veteran has been seeking treatment from the VA for this condition, it remains unclear to the Board whether his COPD is related to any aspect of his military service. A VA examination and medical opinion regarding an etiology of the Veteran's COPD is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon at 79 (2006). B. Thoracic Outlet Syndrome The Veteran contends that he has thoracic outlet syndrome as a result of carrying heavy rucksacks on his back throughout service. The Board notes that the Veteran's private treatment records show a diagnosis of thoracic outlet syndrome. Additionally, the Veteran testified that he had pain in his neck and shoulders due to rucksack palsy. He reported that he struggled with losing circulation. He further stated that his rucksack was probably 100 pounds or greater. He also said that he was a .60 gunner for a couple of years and had to carry the AG gear because they were short-staffed. Although the Veteran has provided competent reports of an in-service incident and current diagnoses and treatment for thoracic outlet syndrome, VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of the Veteran's thoracic outlet syndrome. Although the Veteran has been seeking treatment from the VA for this condition, it remains unclear to the Board whether the Veteran's thoracic outlet syndrome is related to any aspect of his military service. A VA examination and medical opinion regarding an etiology of the Veteran's thoracic outlet syndrome is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon at 79 (2006). III. Secondary Service Connection The Veteran contends that his bilateral knee, bilateral hip, and left ankle disabilities are secondary to his service-connected right ankle disability. The Veteran testified that he had hip problems in-service. He stated that he told many people in-service that his hips were bothering him, but if you injured yourself in-service they would only give you ice and aspirin. He reported that he started getting help for his hips approximately 15 years ago because he started having strap problems. He reported that his hips started to give him problems within three years from discharge, if not sooner. He also stated that his bilateral knee disability resulted from overcompensating for his service-connected right ankle disability. He reported that his knees started hurting him immediately after his ankle sprain. Furthermore, he stated that while in the light Infantry unit he was not given much time to heal, and complaining would get him in trouble. He also stated that he began to get treatment for his knees around the same time as his hips. He stated that his bilateral knee disability had worsened since last examined. Furthermore, he stated that his left ankle was getting to where it was almost as weak as his right ankle because he was relying on it so much. He reported that even with pain medications, there were some days he did not leave his room. The representative noted that on last examination, the Veteran was able to ambulate with minimal gate, which he was now reporting had worsened. The Veteran was afforded VA examinations in November 2012 to assess his knee and hip disabilities. The examiner noted diagnoses of minimal degenerative changes of the bilateral hips and knees. The examiner stated that the Veteran declined to try and cross his legs at his knees due to reported weakness in his legs and could not lift them. Additionally, the examiner noted that upon examination, the Veteran offered limited effort in range of motion and muscle strength testing due to subjective complaints of pain and weakness. Furthermore, the Veteran complained of pain on light palpation of the hips and knees. The Veteran was able to ambulate with a steady gait and had a slight limp concerning his right ankle. The examiner noted that review of medical literature indicated that risk factors for degenerative joint disease were aging, occupation, trauma, and repetitive small insults over time. Additionally, he stated that osteoarthritis was a normal result of aging. The examiner stated that it was also caused by 'wear and tear' on a joint. Being overweight increased the risk of osteoarthritis in the hip, knee, ankle, and foot joints because extra weight causes more wear and tear. The examiner concluded Hhthat it was less likely than not that the Veteran's minimal degenerative changes of the bilateral hips and knees were caused by his service-connected right ankle sprain. Lastly, the examiner noted that the minimal degenerative changes of the bilateral hips and knees would be consistent for his age, weight, and occupation as an auto mechanic. However, the VA examiner failed to state whether the Veteran's bilateral knee and hip disabilities were aggravated by his service-connected right ankle sprain. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Additionally, the Veteran submitted articles discussing the effects of ankle sprain and instability on the rest of the body, which were not considered and discussed by the examiner. Without further clarification, the Board is without medical expertise to determine the onset and/or etiology of the Veteran's bilateral knee and hip disabilities and whether they are caused and/or aggravated by a service-connected disability. Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, VA medical opinions should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, while the November 2012 VA examiner noted that the Veteran had no specific diagnosis concerning his left ankle, he did have subjective complaints of constant pain and weakness. Upon examination, the examiner noted that the Veteran had left ankle limited motion and decreased muscle strength. In addition, at the hearing, the Veteran reported that his left ankle had worsened since he was last examined. As it is unclear to the Board if the Veteran has a current left ankle disability, a new VA examination is necessary. IV. All Issues The Board notes that at the March 2014 hearing, the Veteran reported that he was in receipt of Social Security Administration (SSA) disability benefits. Additionally, at the November 2012 VA examinations, he stated that he was receiving SSA benefits for COPD, thoracic outlet syndrome, and "other conditions." However, the claims file does not contain a copy of the Veteran's SSA records. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013); Voerth v. West, 13 Vet. App. 117 (1999); Baker v. West, 11 Vet. App. 163 (1998); Hayes v. Brown, 9 Vet. App. 67 (1996); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Diorio v. Nicholson, 20 Vet. App. 193 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, on remand, further development to obtain the Veteran's complete SSA record, is warranted. Lastly, a remand is also necessary to obtain outstanding VA medical records. The record reflects that the Veteran was receiving periodic treatment for his claimed conditions at VA through June 2011. At the March 2014 hearing, the Veteran reported that he was receiving treatment for his hip disability at least every three months at the VA. Because it appears that there may be outstanding VA medical records dated after June 2011 that may contain information pertinent to his claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2014); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be afforded the opportunity to submit any outstanding private treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain any of the Veteran's outstanding VA treatment records from June 2011 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The Veteran should also be afforded the opportunity to submit any outstanding private treatment records. 2. Request from SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 3. After completing the foregoing, schedule the Veteran for a VA examination to determine if his COPD is related to his active service. The claims file and a copy of this remand must be made available to the examiner for review. All indicated testing should be conducted. The examiner should offer an opinion as to whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's COPD had its onset during active service or is related to any in-service disease, event, or injury, to include secondhand smoke. The examiner must consider articles submitted by the Veteran including Chronic Obstructive Pulmonary Disease and Second Hand Smoke. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Additionally, schedule the Veteran for a VA examination to determine if his thoracic outlet syndrome is related to his active service. The claims file and a copy of this remand must be made available to the examiner for review. All indicated testing should be conducted. The examiner should offer an opinion as to whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's thoracic outlet syndrome had its onset during active service or is related to any in-service disease, event, or injury, to include carrying a heavy rucksack (at least 100 pounds) in-service. The examiner must consider articles submitted by the Veteran including Loads Carried by Soldiers: Historical, Physiological, Biomechanical and Medical Aspects; Load Stress: Carrier Strain: Implications for Military and Recreational Backpacking; Brachial Plexopathies: Classification, Causes, and Consequences; Load Carriage in Military Operations: A Review of Historical, Physiological, Biomechanical and Medical Aspects; Thoracic Outlet Syndrome; Nerve Injuries from Heavy Backpacks in Soldiers; and Pack Palsy. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Return the November 2012 VA hip and knee examination report and file to an examiner for an addendum opinion. The examiner should state whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's hip and/or knee conditions were (i) caused OR (ii) aggravated (i.e., permanently worsened beyond the natural progress of the disorder) by his service-connected right ankle disability. If aggravation is found, then the examiner should quantify the degree of such aggravation, if possible. In so opining, the examiner is asked to do the following: (a) consider and discuss the Veteran's contention that overcompensation, gait alteration, and instability of the body caused or aggravated his hip and knee disabilities; and (b) consider articles submitted by the Veteran including Relationship Between Functional Ankle Instability and Postural Control; Ipsilateral Hip Abductor Weakness After Inversion Ankle Sprain; The Local and Global Effects of Acute & Chronic Ankle Instability; Data Suggest Proximal Links to Ankle Instability; and Hip Kinematics in Patients with Chronic Ankle Instability. The examiner must provide a comprehensive rationale for all opinions and conclusions reached with references to the pertinent facts used to support such conclusions. 6. In addition, schedule the Veteran for a VA examination to determine the nature, extent, and severity of his service-connected right ankle sprain, and the etiology of any left ankle disability. The claims file must be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, and appropriate testing to determine the extent of any instability in the right ankle must be conducted. A. (i) In examining the right ankle, the examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected right ankle disabilities. (ii) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The examiner should indicate if such loss of motion is more reflective of one of the following: mild, moderate, or marked. (iii) The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. (iv) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. B. The examiner should diagnose any left ankle condition(s) found to be present in regard to any deficit shown on examination including limitation of motion or decreased strength. For all left ankle conditions diagnosed, the examiner should state whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's left ankle condition(s) was (i) caused or (ii) aggravated (i.e., permanently worsened beyond the natural progress of the disorder) by his service-connected right ankle disability. If aggravation is found, then the examiner should quantify the degree of such aggravation, if possible. In so opining, the examiner is asked to do the following: (a) consider and discuss the Veteran's contention that overcompensation, gait alteration, and instability of the body caused or aggravated his left ankle disability; and (b) consider articles submitted by the Veteran including Relationship Between Functional Ankle Instability and Postural Control; The Local and Global Effects of Acute & Chronic Ankle Instability; and Data Suggest Proximal Links to Ankle Instability. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 7. Furthermore, schedule the Veteran for a VA examination(s) to determine the nature, extent, and severity of his service-connected residuals of left inguinal hernia. The claims file must be made available to and reviewed by the examiner(s). All necessary tests should be conducted. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected residuals of left inguinal hernia, to include surgical scar and possible infertility. (i) The examiner should note if the Veteran has postoperative recurrent inguinal hernia, which is readily reducible, and well supported by truss or belt; a small inguinal hernia, which is postoperative recurrent, or is unoperated irremediable, and not well supported by truss, or not readily reducible; or a large inguinal hernia, which is postoperative recurrent, that is not well-supported under ordinary conditions and not readily reducible, when considered inoperable. (ii) Additionally, the examiner should provide a description of each scar, including the size and location. Furthermore, the examiner should discuss whether the scars are superficial (not associated with underlying soft tissue damage) or deep (associated with underlying soft tissue damage); surface contour is elevated or depressed on palpation; hopo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.); causes limitation of motion; is unstable (has frequent loss of covering of skin over the scar); and/or is painful on examination. Furthermore, the examiner should also indicate whether any of the scars cause any limitation of the affected part. (iii) Additionally, the examiner should state whether it is at least as likely as not (at least a 50-50 probability) that the Veteran has infertility and whether such infertility was (i) caused or (ii) aggravated (i.e., permanently worsened beyond the natural progress of the disease) by his service-connected left inguinal hernia. If aggravation is found, then the examiner should quantify the degree of such aggravation, if possible. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 8. Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 9. Following the completion of the foregoing, the AMC should readjudicate the Veteran's claims. The AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).