Citation Nr: 20077595 Decision Date: 12/08/20 Archive Date: 12/08/20 DOCKET NO. 14-41 808 DATE: December 8, 2020 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to July 1985, May 2002 to November 2002, February 2003 to February 2004, and from October 2006 to May 2008. This matter was previously remanded by the Board of Veterans Appeals (Board) in December 2008 for additional development. It now returns for further appellate review. The Board notes that the Veteran’s claim for service connection for seborrheic dermatitis was granted in a September 2020 rating decision. As the award constitutes a full grant of the disability sought, the appeal is resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). 1. Right hip disability 2. Left hip disability Although further delay is regrettable, upon review of the record, the Board finds that a remand is necessary for an addendum medical opinion because the May 2019 VA medical opinion as the May 2019 VA examination contains deficiencies as outlined below. In providing a negative nexus opinion, the examiner noted that there was no evidence of hip complaints during service or one year after, and stated that the Veteran did not identify anything “that could cause actual bilateral hip pain” See May 2019 VA Medical Opinion Disability Benefits Questionnaire (DBQ). However, a review of the claims file indicates that the Veteran reported he experienced hip pain during active service at prior VA examinations. First, during the March 2011 VA examination, the Veteran reported that his right hip pain began in February 2008 during his deployment to Egypt. See March 2011 VA Compensation and Pension Gulf War Examination. Second, during the July 2013 VA examination, the Veteran reported his right hip pain began in 2006 due to constant walking as a prison guard in Cuba. See July 2013 VA Examination Report. It is unclear whether the May 2019 VA examiner reviewed the prior examinations or considered the Veteran’s lay statements regarding the onset of his hip pain. As such, the Board finds a remand is also warranted to address the Veteran’s lay statements. See Miller v. Wilkie, 32 Vet. App. 249, (2020) (holding that the duty to assist requires that an examiner “address the veteran’s lay statements). Additionally, The Board finds the May 2019 VA medical opinion inadequate as it improperly relies on the absence of evidence, specifically a lack of treatment records in providing a nexus opinion. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015)(indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). The May 2019 examiner also addressed whether the Veteran’s current bilateral hip disabilities were either caused by or aggravated by his service-connected disabilities. See May 2019 VA Medical Opinion DBQ. Specifically, she provided a negative nexus opinion between the Veteran’s bilateral hip disabilities and his service-connected disabilities. She reasoned that the Veteran’s service-connected disabilities did not cause hip disability, and there were no leg discrepancies to cause hip joint derangements. Id. The examiner used the same rationale for causation and aggravation. However, the Board finds that the rationale for causation does not address aggravation. The United States Court of Appeals for Veterans Claims (Court) held that the phrases “caused by” and “related to” do not address the aggravation aspect of secondary service connection. Allen v. Brown, 7 Vet. App. 439, 449 (1995). The Court has held that when an examiner determines whether service connection is warranted on a secondary basis, he or she must address both direct causation as well as aggravation. See also See El-Amin v. Shinseki, 26 Vet. App. 136 (2013)(A secondary service connection opinion must address both causation and aggravation to be deemed adequate.) Thus, on remand, an addendum medical opinion to address whether the Veteran’s service-connected disabilities aggravated his bilateral hip disabilities should be obtained. On remand, the Regional Office (RO) should ensure that the VA examiner, provides a direct service connection etiology opinion and a secondary service connection etiology opinion, which also addresses the aggravation prong of secondary service connection for all of the Veteran’s hip disabilities that were diagnosed in or active during the appeal period. See 38 C.F.R. § 3.310. The matters are REMANDED for the following action: 1. The RO should obtain any outstanding VA treatment records pertaining to the Veteran’s bilateral hip disabilities since September 2020 and associate them with the record. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the foregoing development, provide the entire claims file (including this Remand decision) to the May 2019 VA examiner, or another clinician with appropriate experience to provide an addendum etiology and nexus opinions for the bilateral hip disabilities. If the examiner determine a VA examination is necessary, s/he should obtain or perform any clinically indicated testing and/or consultations. 4. The examiner is asked to address the following: (a.) Identify any currently present bilateral hip disability(s). (b.) For any hip disability(s) identified, is the disability at least as likely as not (50 percent probability or greater) due to, or caused by any incident in the Veteran’s active service, to include the Veteran’s report that his hip pain began in February 2008 during his deployment to Egypt, or was caused by constant walking from working as a prison guard in Cuba? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral disability(s) had their onset or manifested within one year of the Veteran’s discharge in May 2008? (d.) If arthritis is found to be present, the examiner is to address whether it is as likely as not (50 percent probability or greater) related to any incident of service and/or had its onset within one year of his separation from service. (e.) Provide an opinion whether it is at least likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hip disability(s) was/were caused by any of the Veteran’s service connected disabilities to include a lumbar spine disability, bilateral plantar fasciitis, or right knee disability. (f.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hip disability(s) underwent an incremental increase (aggravated), regardless of permanence, by his service-connected lumbar spine disability, bilateral plantar fasciitis, or right knee disability. • The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. • The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. • A rationale for all opinions expressed should be provided in the examination report. If medical literature is relied upon in rendering any opinion(s), the VA examiner should identify and specifically cite each reference material utilized. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gunella Lilly, 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.