Citation Nr: 18144394 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-38 817 DATE: October 24, 2018 REMANDED Entitlement to service connection for a low back disability (spinal stenosis and disk rupture L5-S1). Entitlement to service connection for a bilateral hip disability (bilateral hip replacement), claimed as secondary to a low back disability. REASONS FOR REMAND The Veteran served on active duty from February 1971 to November 1971. These matters are on appeal from a February 2015 rating decision. 1. Low back disability The Veteran contends that he has a pre-existing low back disability, claimed as congenital spinal stenosis, that was aggravated by his service. The service treatment records are void of any complaints of low back pain or findings, symptoms, or diagnosis of any low back disability. Post-service, records from the Social Security Administration include an October 2013 orthopedic consultation which indicates a history of chronic low back pain. In the early 1990s, a gym injury made his low back disability worse. He had a second injury in 1995 at work while lifting a heavy Arrowhead bottle. The orthopedic surgeon diagnosed chronic lumbar facet degenerative disk disease, especially L4-L5 and L5-S1 with congenital stenosis and an extruded disk compressing the S1 nerve root on the right at L5-S1. The record also includes an August 2015 report from private physician Dr. G.L.M. who stated that the Veteran presented with a history of difficulty keeping up with the rest of his platoon during endurance drills and/or physical activity during service. The Veteran said this his back problems dated back to training in February 1969 and stated that he had back problems since that time. The physician indicated that he did not begin treating the Veteran until 2007 and had no personal knowledge of the early stages of his back problems. However, the Veteran complained of a gradual decline in back since service. The Veteran has not yet been afforded a VA examination regarding this claim. On remand, a VA examination and medical opinion regarding the etiology of his claimed low back disability should be obtained. 2. Bilateral hip disability The Veteran contends that he developed a bilateral hip disability secondary to his low back disability. Accordingly, the Board finds that the bilateral hip disability claim is inextricably intertwined with the remanded low back disability claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Because adjudication of the low back disability claim will potentially affect the bilateral hip disability claim, adjudication of the Veteran’s bilateral hip disability claim is deferred. The bilateral hip disability claim should not be returned to the Board until the low back disability claim is adjudicated and is no longer pending or is certified to the Board for appellate review. The matters are REMANDED for the following actions: Schedule the Veteran for a VA examination which addresses the nature and etiology of the Veteran’s low back disability. The claims file must be provided to the examiner for review. All indicated studies and tests should be performed. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. (a) Is there any diagnosed lumbar spine disability, to specifically include congenital spinal stenosis, that is a congenital defect or a congenital disease? (b) If a congenital disease is present, the examiner should render a medical opinion as to whether the congenital disease permanently worsened beyond its natural progression during the Veteran’s military service. If there was permanent worsening of a congenital disease during service, was the worsening consistent with the natural progress of the disease, or was the worsening beyond the natural progress of the disease? (c) If a congenital defect is present, the examiner should render a medical opinion as to whether it is at least as likely as not that there was a superimposed disease or injury during military service that resulted in additional disability. (d) Is there clear and unmistakable (undebatable) evidence to show that any low back disability, to include congenital spinal stenosis, pre-existed service? (e) If the examiner determines that there is clear and unmistakable evidence that any low back disability pre-existed service, is there clear and unmistakable evidence that the pre-existing disability did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disability? (f) If there is not clear and unmistakable evidence that any low back disability, including congenital spinal stenosis, pre-existed service, or if there is not clear and unmistakable evidence that a pre-existing low back disability was not worsened beyond its natural progression by service, is it at least as likely as not (i.e., a 50 percent probability or greater) that any currently diagnosed low back disability is related to the Veteran’s service? (g) If the Veteran’s low back disability has been related to his service, is it at least as likely as not (50 percent probability or more) that any bilateral hip disability is (a) proximately due to or the result of the Veteran’s service-connected low back disability, or (b) aggravated or permanently worsened by his service-connected low back disability? If it is determined that the bilateral hip disability is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. (Continued on the next page)   (Continued on next page) KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel