Citation Nr: 20003472 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 17-41 906 DATE: January 16, 2020 REMANDED Entitlement to service connection for degenerative joint disease of the right hip, to include as secondary to service-connected fragment wounds of the bilateral lower extremities, is remanded. REFERRED ISSUE The Board observes that the agency of original jurisdiction (AOJ) has not yet adjudicated the Veteran’s February 3, 2015 claim for entitlement to a temporary total rating based on convalescence of the right hip. In this regard, the July 2014 rating decision on appeal denied service connection for a right hip disability. The Veteran filed a timely notice of disagreement as to the denial but also indicated that he was seeking a temporary total rating for a total right hip replacement surgery performed at the VA Medical Center in Bay Pines, Florida on October 21, 2014. As such, the issue of entitlement to a temporary total rating based on convalescence of the right hip was raised but has not been considered by the Agency of Original Jurisdiction (AOJ) and there is no adverse determination on this issue. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2018). REASONS FOR REMAND The Veteran served on active duty from May 1968 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Entitlement to service connection for degenerative joint disease of the right hip, to include as secondary to service-connected fragment wounds of the bilateral lower extremities, is remanded. In connection with this claim, the Veteran was provided a VA examination in June 2016. The examiner opined that “the claimed left hip condition is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service connected splenectomy for fragment would and laceration of the spleen condition.” In support of this opinion, the examiner noted that review of medical record show that the Veteran did not have a fragment would involving the left hip joint; review of VA medical record shows no weakness of the thighs and noted Veteran ambulated with independently with a non antalgic gait. There is no atrophy of the thighs on clinical examination. The Board finds this medical opinion to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). Most significantly, the examiner addressed the etiology of the left hip, not the right hip at issue on appeal. Furthermore, the Veteran contends that he developed traumatic arthritis in the right hip or degenerative arthritis developed at a much faster rate than normal aging, due to his service-connected fragment wounds in both lower extremities. He states that he walked differently to cope with the pain and leg cramping, which put unusual strain on his right hip joint. However, the VA medical opinion did not address the question of whether there has been aggravation by service-connected fragment wound of the bilateral lower extremities. To that effect, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 449 (1995); see also 38 C.F.R. § 3.310(b). With regard to the issue of aggravation, the Court observed that the language “not due to,” “not caused by,” or “not related to” a service-connected disability is insufficient to address the question of aggravation under § 3.310(b). Id. Consequently, a new medical opinion is required to adequately decide the merits of the claim. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records from the (VAMC) in Bay Pines, Florida, dated from May 2017 to the present. All efforts to obtain additional evidence must be documented in the claims file. 2. Schedule the Veteran for a VA examination with a VA examiner with the appropriate expertise to determine the current nature and etiology of his current right hip disability. Access to the Veteran’s electronic claims file must be made available to the examiner for review prior to examination. A comprehensive clinical history should be obtained, to include a discussion of the Veteran’s documented history and assertions. The examiner must provide opinions (a) as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s currently diagnosed right hip disability had onset during active duty service, or is otherwise related to service, specifically to include the claimed improper dental treatment in service; and (b) as to the whether such disability is proximately due to, or aggravated beyond its natural progression by, service-connected fragment wounds of the bilateral lower extremities. In particular, the examiner must address the secondary service connection theory put forth in a November 2019 Written Brief Presentation prepared by the Veteran’s representative. To that effect, the Brief suggests that “[a]ccording to the American College of Rheumatology, altered gait due to limping resulting in increased loading rate in the lower extremity joints may lead to a faster progression of existing osteo-arthritis (OA). The increased loading rate in the lower extremity joints may lead to a faster progression of existing OA and to the onset of OA at other joints.” Causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, the examiner must provide separate findings and rationales relating to causation and aggravation. Aggravation exists when there is an increase in disability during such service that is not due to the natural progress of the disease. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as opposed to symptoms, is worsened. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal taking into consideration any newly acquired evidence. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.