Citation Nr: 20028091 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 17-13 049 DATE: April 22, 2020 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left hip disability is remanded. REASONS FOR REMAND The Veteran had active military service with the United States Marine Corps from July 1970 to July 1974 and from June 1981 to September 1992. The Veteran also had almost six years of service with a Reserve Component. In a March 2019 decision issued by a Veterans’ Law Judge other than the undersigned the Board of Veterans’ Appeal (Board), among other things, denied service connection for back and left hip disabilities and remanded a claim of service connection for an acquired psychiatric disorder including posttraumatic stress disorder (PTSD). As to the March 2019 Board decision that denied service connection for back and left hip disabilities the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a subsequent October 2019 Joint Motion for Partial Remand (JMR), which was incorporated into an order later that month, the parties agreed to vacate and remand the March 2019 Board decision to the extent that it denied service connection for back and left hip disabilities. As noted above, in March 2019 the Board remanded a claim of service connection for an acquired psychiatric disorder including PTSD. Similarly, while the above issues were at the Court the Veteran appealed the regional office’s (RO’s) denial of his claim of service connection for a traumatic brain injury (TBI), an earlier effective date for a 100 percent rating for a total left knee replacement, and a rating in excess of 30 percent for a left knee status post total knee replacement. However, the Board finds that none of these issues will be discussed in the below decision because they have not again been certified to the Board. This delay is needed to ensure that the claimant is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). Entitlement to service connection for back and left hip disabilities are remanded As to the claims of service connection for back and left hip disabilities, vacate and remand the March 2019 Board decision because the May 2015 VA examination the Board relied upon to deny the Veteran’s claims based on a theory of secondary service connection did not address that element of aggravation. See 38 C.F.R. §§ 3.303, 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, the Board finds that a Remand is required to obtain new and adequate etiology opinions. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.). In this regard, the Board notes that when obtaining the new etiology opinions and when again adjudicating the claims that agency of original jurisdiction should be aware of the fact that since the Board last adjudicating the claims the Court changed the definition of aggravation. Specifically, the Court in Ward v. Wilkie, No.16-2157__Vet.App.__, 2019 U.S. App. Vet. Claims LEXIS 994 at *15 (Jun. 14, 2019) redefined the definition of aggravation to know include a temporary worsening of a disability. See also 38 C.F.R. § 3.310(b). While the appeal is in remand status, the agency of original jurisdiction (AOJ) should also obtain and associate with the record any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). 3. Thereafter, in order to comply with the JMPR schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his back and left hip disabilities. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the back and left hip disabilities were caused by the Veteran’s military service. b. Provide an opinion as to whether back and left hip arthritis manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the back and left hip disabilities were caused by the Veteran’s service-connected left knee disorder. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the back and left hip disabilities were aggravated by the Veteran’s service-connected left knee disorder. In order to comply with the JMPR, in providing answers to the above questions, the examiner should consider and discuss the service treatment records to include the records generated during his Reserve Component service to include the August 2000 service treatment record describing how the Veteran “injured his leg and knee inside the turret of a M1A1 [(tank)] during [a] platoon [situational training exercise] at Fort Hunter-Liggett.” In providing answers to the above questions, the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against In providing the etiology opinion, the examiner should be aware of the facts that the Court recently held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating 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 in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.