Citation Nr: 20082011 Decision Date: 12/31/20 Archive Date: 12/31/20 DOCKET NO. 17-21 397 DATE: December 31, 2020 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right knee condition as secondary to the right hip disability is remanded. Entitlement to service connection for a right ankle condition as secondary to the right hip disability is remanded. Entitlement to service connection for depression and anxiety as secondary to the right hip disability is remanded. Entitlement to irritable bowel syndrome (IBS), to include as secondary to the right hip disability, is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had a period of initial active duty for training from February 2011 to March 2012, with service in the Marine Corps Reserves from November 2010 to January 2015. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. It appears from the record that almost all of the Veteran’s service was in the Reserves. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated, while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C. §§ 101, 106, 1131. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. See 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserve or the National Guard of any state. See 38 C.F.R. § 3.6(d). Here, first, a remand is required to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making reasonable efforts to obtain relevant private medical records. See 38 C.F.R. § 3.159(c)(1). At the 2020 hearing, the Veteran testified that he was seen by private doctors for his conditions during and subsequent to the alleged 2012 hip injury, as well as had multiple surgeries and physical therapy and mental health treatment. He submitted buddy statements from fellow servicemembers who witnessed the initial alleged injury in June 2012 during a period of ACDUTRA, as well as stated during a drill weekend the Veteran collapsed from fatigue due to the pain in his hip, and that he was taken to the hospital; those records also need to be obtained and associated with the record. During the hearing, the Veteran also stated that he was planning to discuss the conditions with his private doctor as to his mental health and hearing issues, and that he had a recent X-ray, CT scan, and MRI of his hips, indicating there may now be relevant private treatment records. As such, a remand is necessary to undertake reasonable efforts to obtain any recent private medical records. Next, the Veteran testified that he received a medical discharge from the Marine Corps Reserves due to his right hip disability. Those records should be obtained. Finally, as there is some evidence indicating the Veteran’s right hip disability, alleged left ear hearing loss, alleged tinnitus, and alleged IBS may be due to service, on remand, the Veteran should be afforded a VA examination with a medical opinion to determine the nature and etiology of these claimed conditions. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Further, the VA examiner will be instructed to consider the lay evidence, including the statements from the Veteran; the multiple letters from the Veteran’s fellow servicemembers received in April 2017; the June 2020 hearing testimony; and the 2015 VA examiner’s opinion that the right hip condition is due to service. Then, opine whether the right hip disability and any diagnosed left ear hearing loss, tinnitus, or IBS is related to the Veteran’s periods of active service, ACDUTRA, INACDUTRA, or onset within one year of active service, or, as to the ear condition and mental health condition, whether they pre-existed service and was aggravated by his service. Then, opine as to whether the Veteran’s alleged right knee and right ankle conditions are secondary to the right hip disability, to include his altered gait from his hip, and whether he has a diagnosis for depression/anxiety secondary to his right hip disability, and whether his IBS was caused or aggravated by medication taken for the right hip disability. The matters are REMANDED for the following action: 1. Request from the National Personnel Records Center or other appropriate entity the Veteran’s Marine Corps Reserves personnel records concerning his discharge in 2015, to include any medical evaluations done in connection with his discharge. 2. Take all appropriate action to verify all periods of ACDUTRA or INACDUTRA, to include thorough analysis of personnel records, if necessary. Specifically request verification of whether the Veteran was on any form of service duty, and what type, in June 2012 and March 2013, when he reported pain and injury to his hip. 3. Request the Veteran to submit or complete VA Form 21-4142 for any relevant updated and/or outstanding private treatment records; to include specifically from • June 2012 and March 2013 Via Christi Emergency Room/hospital records in Wichita, Kansas; • Family Physicians of the Plain; • Kansas Imaging Consultants; • Texas Health Provider; • Baylor University for surgery on the right hip in December 2013 and March 2017; • NW Oklahoma Orthopedic for physical therapy in December 2013 through February 2014 following surgery; • University of Oklahoma Health in April 2014; • Immediate Care of Oklahoma in April 2015 for consultations and X-rays; • HPI Physicians for pain management beginning May 2016; • Physicians Group for pain management beginning September 2016; • BTDI JV for surgery consultation, X-rays and MRI in October 2016; • American Radiology Consults in March 2017 for X-rays; • All new records from UCHealth; • Surgery records from August 2020 for his leg and hip as noted in the UCHealth records; and • any other identified private records, to include from Dr. G. Shelton, Dr. Teskey, Dr. H. Martin and Dr. McDaniel, and ongoing records for his mental health treatment, and hearing loss. Thereafter, request the identified and authorized records. All information obtained must be made part of the file and all attempts to secure this evidence must be documented in the claims file; and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. Do not proceed with scheduling the following examinations until the above has been completed to the extent possible. 5. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any right hip condition and right ankle and right knee conditions. The examiner must review the claims file, to include this remand, and should note that review in the report. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide an opinion on whether: a) it at least as likely as not (50 percent or greater probability) that the Veteran’s right hip disability was incurred during service, or is due to any event, disease, or injury during service, including during ACDUTRA, or any injury during INACDUTRA; b) it is at least as likely as not that the Veteran’s right hip disability proximately caused or aggravated beyond the normal progression any current right knee and right ankle conditions? In providing the requested opinion, the examiner should specifically address: • The examiner is reminded that only injuries, and not diseases, are recognized under 38 U.S.C. § 101(24) as the basis for establishing service-connection related to periods of INACDUTRA; • The 2015 VA examiner’s opinion that the current right hip condition is due to the alleged 2012 injury; • The March 2011 right or left thigh report of possible femur stress fracture; • The August 2012 diagnosis for iliopectineal bursitis with possible intra-articular pathology; • August 2012 - the Veteran reported to Dr. G.S. with a history of right hip pain for the last five months after feeling the hip pop out of place on recurrent occasions with some catching. He reported the only strenuous activity was his fitness training for the Marines; • September 2012, Dr. T.T. noted that the Veteran had “increased sensations of popping and catching within the right hip” and he performed a dilute steroid injection and the diagnosis was mechanical right hip pain; • In September 2012, the NW Oklahoma Orthopaedic Clinic notes indicated that in May 2012 right hip injury and marked that if light duty is not available, he was temporarily totally disabled; • March 2013 - history of right hip pain for over 8 months with onset being running during AIT (advanced training). He described the hip as frequently popping out of place and that he has had two MRIs and that he had fracture and loss of joint space; • March 2014 report that he was walking with a crutch, limping and favoring his right leg; his right knee was diffuse tenderness and right ankle had diffuse tenderness, and it was also noted he had right knee and foot pain secondary to his altered gait; • March 2014 reported “due to hip pain and altered gait he also has pain in the right knee and foot” and it was noted right hip pain for the past two years after femoral head became degenerative from repetitive stress fractures from running. He then had a hip subluxation and dislocation; • August 2015 VA examination report where he reported the onset of symptoms being 2012 when he was running and his leg popped out of his hip on the rifle range; • The 2017 buddy statements from fellow servicemembers who witnessed the 2012 injury and subsequent hip issues during periods of training; • The 2020 sworn testimony; and • The private medical records received as part of the remand. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. 6. Schedule the Veteran for an audiological examination to determine whether he has left ear hearing loss and tinnitus. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. Then, the examiner is asked to opine as to whether: (a) It is at least as likely as not any hearing loss and tinnitus are at least as likely as not related to an in-service injury, event, or disease, including noise exposure and his otitis media in the left ear; (b) any hearing loss/tinnitus began during a period of active duty service or during his ACDUTRA/INACDUTRA; (the Board notes that only injuries, and not diseases, are recognized under 38 U.S.C. § 101(24) as the basis for establishing service-connection related to periods of INACDUTRA); or (c) it is at least as likely as not that the ear condition prior to service wherein he had a microscopic hole in his eardrum and had to have a skin graph to patch it up was aggravated by service or that any increase in the disability was due to the natural progression of the disease? In this regard, the examiner is directed to review the Veteran's military personnel records documenting his periods of ACDUTRA and INACDUTRA and opine as to whether the Veteran's contentions regarding his hearing loss and tinnitus are consistent with his military service. The examiner should directly address the Veteran’s contentions and competent reports and sworn testimony specifically: • while stationed at 29 Palms, he noticed hearing loss during artillery training, and it got worse when he was around M16s (and that he has a rifle expert badge) • that since service he has to repeat things and he has trouble hearing his wife; • that his tinnitus sounds like white noise high pitched ringing and he began to experience this noise after being on the rifle range and that he had not been given any hearing protection; • the March 2014 audiogram indicated a slight shift in his left ear hearing threshold; • the March 2011 STR showing he had chronic otitis media with fluid build up in his left ear and he could barely hear out of it with reported earaches; examination diagnosis was erythematous in the left ear; and • his 2010 entrance examination, he reported a history of having a microscopic hole in his ear and had a skin graph to patch it up. The examiner is reminded the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and tinnitus and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 7. Schedule the Veteran for a mental health examination and determine his current diagnoses for a mental health condition. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the report. Then, the examiner is asked to opine: a.) Whether the Veteran had a pre-existing mental health condition, that was aggravated by service or that any increase in the disability was due to the natural progression of the disease? b.) Whether it is least as likely as not that the Veteran has a current mental health condition that is due to, or aggravated beyond its natural progression by, a service-connected disability? The examiner is asked to consider the Veteran’s lay contentions and sworn testimony as to his right hip disability causing him to have depression; and his 2010 report of medical history for entrance, he marked “yes” to nervous trouble, depression/excessive worry, and that he had been evaluated for a mental health condition. He indicated he was treated for minor anxiety and depression when he was in high school and was put on a generic form of Paxil. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 8. Then, schedule an examination as to the Veteran’s irritable bowel syndrome. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. The examiner is then asked to determine: a.) Whether is at least as likely as not the Veteran’s IBS is related to his active duty service? b.) Whether it is least as likely as not that the Veteran’s IBS is due to, or aggravated beyond its natural progression by, a service-connected disability/medication taken for a disability? The examiner is asked to consider the March 2011 STRs showing he reported to medical care due to blood in his stool; the March 2014 report of constant bloating for two years with intermittent episodes of constipation and diarrhea with some GERD and it was marked he had IBS; and the 2020 sworn testimony that stated he had an endoscopy and arthroscopy done, and that due to the opiates he took for his right hip disability, he has a weak stomach; and the private medical records showing he reported diarrhea and bloody stools and it was noted he had a long-term opiate analgesic use. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.