Citation Nr: 18139648
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 15-10 690
DATE:	September 28, 2018
ORDER
Entitlement to service connection for a right hip disorder, diagnosed as tendonitis, myofascial pain syndrome and trochanteric bursitis, is granted.
REMANDED
Entitlement to an increased rating in excess of 10 percent for left hip osteoarthritis with limited extension is remanded.
Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia is remanded.
Entitlement to an increased rating in excess of 10 percent for radiculopathy and peripheral neuropathy of the left lower extremity is remanded.
Entitlement to an increased rating in excess of 10 percent for radiculopathy and peripheral neuropathy of the right lower extremity is remanded.
Entitlement to an increased rating in excess of 30 percent prior to July 30, 2015 and in excess of 50 percent thereafter for depression is remanded.
Entitlement to service connection for memory loss is remanded.
FINDING OF FACT
A right hip disorder, diagnosed as tendonitis, myofascial pain syndrome and trochanteric bursitis, had its onset during active service.
CONCLUSION OF LAW
The criteria for service connection for a right hip disorder, diagnosed as tendonitis, myofascial pain syndrome and trochanteric bursitis, have been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
Entitlement to service connection for a right hip disorder.
The Veteran served on active duty from September 13, 2000 to November 27, 2000.
While the RO characterized the Veteran’s claim as whether new and material evidence had been submitted to reopen a claim for service connection for a right hip disorder, the Board notes that new and material evidence consisting of VA treatment records was received within one year of the April 2002 rating decision that denied service connection for a right hip disorder.  As such, the April 2002 rating decision did not become final with respect to the Veteran’s right hip disorder claim and the Board will address her claim on the merits.  
Service connection will generally be awarded for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.
The Veteran’s service treatment records show that she was treated for bilateral hip pain in November 2000.  After her separation from service, she was afforded a VA examination in January 2002.  At that time, she gave a history of bilateral hip pain for approximately one year.  She was diagnosed as having tendonitis of the bilateral hips.  Based upon this evidence, in an April 2002 rating decision the RO awarded service connection for left hip tendonitis, but denied service connection for right hip tendonitis.  
Subsequent VA treatment records have shown continuing complaints of chronic right hip pain from 2002 to the present time, with diagnoses of myofascial pain syndrome and trochanteric bursitis in the hips.  See VA treatment records dated June 26, 2002, July 2, 2002, October 24, 2002, June 20, 2003 (chronic hip pain since service), January 11, 2005 (multiple tender areas in both hips), November 9, 2006 (pain in the hips), August 19, 2009, December 8, 2016, January 27, 2016, and February 8 and 27, 2016.
Resolving doubt in the Veteran’s favor, the Board finds that her current right hip disorder cannot be reasonably disassociated from her complaints of chronic hip pain that began during service and continued since that time.  As such, service connection for right hip tendinitis and bursitis is granted.  
REASONS FOR REMAND
1. Entitlement to an increased rating in excess of 10 percent for left hip osteoarthritis with limited extension is remanded.
2. Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia is remanded.
3. Entitlement to an increased rating in excess of 10 percent for radiculopathy and peripheral neuropathy of the left lower extremity is remanded.
4. Entitlement to an increased rating in excess of 10 percent for radiculopathy and peripheral neuropathy of the right lower extremity is remanded.
The Veteran was last afforded a VA examination addressing the severity of her service-connected left hip osteoarthritis with limitation of extension, left knee chondromalacia, and bilateral radiculopathy and peripheral neuropathy of the lower extremities in July and September 2015.  In her February 2017 Board Hearing, the Veteran asserted that her disabilities had worsened since her last exam.  See February 2017 Board Hearing.  Accordingly, given the suggestion that the Veteran’s disability picture has changed, new VA examinations are warranted to assess the current level of severity her disabilities.  See 38 C.F.R. § 3.327 (a) (2016) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability).  See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) (“Where the record does not adequately reveal the current state of the claimant’s disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.”); Olsen, 3 Vet. App. at 482; Proscelle v. Derwinski, 2 Vet. App. at 632; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  
5. Entitlement to an increased rating in excess of 30 percent prior to July 30, 2015 and in excess of 50 percent thereafter for depression is remanded.
During her February 2017 Board hearing the Veteran asserted that her symptoms of depression had worsened since her last VA examination in July 2017.  See February 2017 Board Hearing.  Accordingly, a new VA examination is warranted to assess the current severity of the Veteran’s depression.  In addition, the Veteran has reported that she was hospitalized at the Smithfield Johnson Memorial Hospital for depression and continues to receive treatment for her symptoms at the Durham VA facility.  As these records are pertinent to the claim, efforts should be undertaken to obtain these them.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(2).
 
6. Entitlement to service connection for memory loss is remanded.
There appear to be outstanding VA treatment reports.  During her February 2017 Board hearing, the Veteran reported that she was treated at the VA facility in Durham for memory loss.  As these records are pertinent to the claim, efforts should be undertaken to obtain these them.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2).
The matters are REMANDED for the following action:
1.  Send a letter to the Veteran requesting her to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claims.  Special attention is directed towards the records of at the Smithfield Johnson Memorial Hospital.  The Veteran should be invited to submit this evidence herself or to request VA to obtain it on her behalf.  Authorized release forms (VA Form 21-4142) should be provided for this purpose. 
If the Veteran properly fills out and returns any authorized release forms for private records identified by her, reasonable efforts should be made to obtain such records and associate them with the VBMS virtual file.  At least two such efforts should be made unless it is clear that a second effort would be futile. 
If attempts to obtain any records identified by the Veteran are not successful, she must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file.
2.  Make arrangements to obtain the Veteran’s complete VA treatment records from the Fayetteville facility dated from September 2015 forward, and from the Durham facility dated from November 2015 forward.  
3.  Thereafter, schedule the Veteran for an appropriate VA examination for her service-connected left hip and left knee disabilities.  
The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination.  The examiner must note in the examination report that the evidence in the claims file has been reviewed.  The examination should include any necessary diagnostic testing or evaluation, i.e. X-rays, etc.  All pertinent symptomatology should be reported in detail.
In particular, the examiner should test the range of motion using a goniometer in active motion, passive motion, weight-bearing, and non-weight bearing, for the hips and knees.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or non-weight bearing), must be specified.
The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time.  Based on the Veteran’s lay statements and any additional relevant evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.  To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion.  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).  
The examiner must provide a comprehensive report including complete rationales for all opinions.
4.  Schedule the Veteran for a VA neurological examination to determine the current severity of her bilateral radiculopathy and peripheral neuropathy of the lower extremities.  
The appropriate Disability Benefits Questionnaire (DBQs) should be completed.  The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken.  All appropriate diagnostic testing should be accomplished, i.e., EMG, NCS, etc.  
All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report.
5.  Schedule the Veteran for an appropriate VA examination to determine the severity of her service-connected depression.  The Veteran’s claims file, including a copy of this remand, must be made available to and reviewed by the hearing examiner.  The examination report must reflect that such a review was undertaken.  The examination should include any necessary diagnostic testing or evaluation.
The examiner must identify the symptoms and functional impairment associated with the Veteran’s depression.  Preferably, the appropriate Disability Benefits Questionnaire (DBQ) should be used for this purpose.
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.  

 
P.M. DILORENZO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Sinckler, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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