Citation Nr: 21000544 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-07 788 DATE: January 5, 2021 ORDER Service connection for bilateral trochanteric bursitis is granted. REMANDED Entitlement to service connection for residuals of a traumatic brain injury is remanded. Entitlement to service connection for a lumbar spine condition is remanded. FINDING OF FACT There is probative evidence of record attributing the Veteran’s bilateral trochanteric bursitis to her service-connected fibromyalgia. CONCLUSION OF LAW The criteria for service connection for bilateral trochanteric bursitis as secondary to service-connected fibromyalgia have been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1985 to August 1988. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from January 2007 and April 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board previously remanded this matter in August 2016 and August 2019. 1. Bilateral Trochanteric Bursitis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent medical or lay evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury may be service connected. 38 C.F.R. § 3.310(a). Establishing secondary service connection requires competent medical or lay evidence of: (1) a current disability that is not already service connected; (2) at least one service-connected disability; and (3) a nexus between the current disability and the service-connected disability, showing that the current disability was either proximately due to or the result of the service-connected disability or that the current disability was aggravated (increased in severity) beyond its natural progression by the service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the Veteran’s medical records and examinations note that she was diagnosed with bilateral trochanteric bursitis. Additionally, the Board notes that the Veteran was service connected for fibromyalgia in an October 2020 rating decision. On examination in August 2017, the examiner determined that the Veteran’s bilateral hip condition was secondary to her fibromyalgia. The examiner reasoned that the Veteran was diagnosed with fibromyalgia in 2000 and with bilateral trochanteric bursitis secondary to fibromyalgia in 2005 and that medical literature supported a relationship between the Veteran’s bilateral trochanteric bursitis and “painful disorders” such as fibromyalgia. See August 2017 VA Hip and Thigh Conditions C&P Examination. The Board finds the determination of the August 2017 examiner concerning the relationship between the Veteran’s bilateral trochanteric bursitis and fibromyalgia to be especially probative. This finding is underpinned by sufficient rationale, citing to the fact that medical literature supports a relationship between bilateral trochanteric bursitis and painful conditions such as fibromyalgia, the Veteran’s medical records, and a complete review of the claims file. The probative evidence shows that the Veteran’s bilateral trochanteric bursitis is the result of her service-connected fibromyalgia. Thus, service connection for bilateral trochanteric bursitis as secondary to service-connected fibromyalgia is warranted. REASONS FOR REMAND 1. Residuals of Traumatic Brain Injury Regarding the Veteran’s claim for residuals of a traumatic brain injury she suffered while in service, the Board acknowledges receipt of a December 2019 opinion and September 2020 addendum opinion. In the December 2019 opinion, the examiner found that a nexus could not be determined because “it is unclear which ‘disability’ is being referenced as being a result of ‘in-service assault and the service-connected acquired psychiatric disorder.’” See December 2019 VA Residuals of Traumatic Brain Injury C&P Examination. The examiner, however, did not adequately consider or address the Veteran’s reports of experiencing problems with her gait and/or feeling “off-balance” due to the in-service head trauma. The September 2020 addendum opinion finds that the Veteran’s residuals of a traumatic brain injury are less likely than not the result of her in-service assault; however, a rationale explaining this conclusion was not provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 201 (2008). Furthermore, the December 2019 opinion addresses secondary service connection as it relates to causation, but not aggravation. See El-Amin, v. Shinseki, 26 Vet. App. 136, 140-41 (2012). Consequently, the Board finds that an addendum opinion ascertaining the nature and etiology of any residuals of a traumatic brain injury is warranted. 2. Lumbar Spine Condition As noted above, the Veteran was granted service connection for fibromyalgia in an October 2020 rating decision. Thus, the Board finds that there is a question as to whether the Veteran’s lumbar spine disability is etiologically linked to her fibromyalgia. Furthermore, the Board notes that the most recent opinion regarding the Veteran’s lumbar spine condition is inadequate. The Board previously requested an opinion as to whether the Veteran’s lumbar spine disability was linked to her service-connected psychiatric disorder. See August 2019 Board Decision. Although a December 2019 examiner opined as to whether the Veteran’s lumbar spine disability was caused by her service-connected psychiatric condition, the examiner did not provide an opinion as to aggravation. See El-Amin, 26 Vet. App. at 140-41. Moreover, in the December 2019 examiner’s opinion, the examiner stated that the onset of the Veteran’s lumbar condition was not until after service and therefore was less likely than not caused by an event in service. However, the examiner did not address the Veteran’s competent statements that she was assaulted by another soldier in service which in turn caused her gait to change and for her to experience pain in her body, including her back. See October 2008 DRO Hearing Transcript. Additionally, the Veteran has asserted that her back condition is the result of carrying big duffle bags which included carrying items such as M-16 rifles, and marching uphill. See August 2017 VA Thoracolumbar Spine C&P Examination; December 2019 VA Thoracolumbar Spine C&P Examination. Thus, the Board finds that the examiners have not considered and addressed all pertinent evidence of record related to the Veteran’s lumbar spine condition. As such, the Board finds that an addendum opinion as to the nature and etiology of the Veteran’s lumbar spine disability is warranted. The matters are REMANDED for the following action: 1. Return the claims file to the examiner who authored the December 2019 and September 2020 opinions regarding the nature and etiology of any residuals of the Veteran’s in-service traumatic brain injury. If this examiner is not available, forward the claims file to another clinician with the appropriate expertise. The examiner should identify any and all residual conditions attributable to the Veteran related to a traumatic brain injury throughout the appellate period. For each residual condition so identified, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the condition manifested during, or is the result of, the Veteran’s active service, to include an incident of in-service assault. For each residual condition so identified, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the condition was either (i) caused or (ii) aggravated by her service-connected disabilities. NOTE: With respect to the question concerning aggravation, the examiner is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to aggravation. In formulating his or her opinions, the examiner should consider and address the competent medical and lay evidence of record, including but not limited to: (a) The Veteran’s service treatment records; (b) The Veteran’s post-service VA medical records; (c) The Veteran’s October 2008 DRO hearing testimony depicting the in-service assault; (d) The April 2008 Statement from the Veteran’s sister corroborating the Veteran’s in-service assault; and (e) The Veteran’s competent lay statements related to the onset and continuity of her symptomatology. If the examiner determines that the Veteran’s residual condition(s) is/are less likely than not due to service or caused and/or aggravated by her service-connected disabilities, the examiner should discuss what other factor(s) caused the disorder(s). A complete rationale must be provided for all opinions and conclusions reached. 2. Return the claims file to the examiner who authored the December 2019 opinion regarding the nature and etiology of the Veteran’s lumbar spine disability. If this examiner is not available, forward the claims file to another clinician with the appropriate expertise. The examiner should identify any and all lumbar spine conditions attributable to the Veteran throughout the appellate period. For each condition so identified, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, her active service, to include duties of lifting and carrying and an incident of in-service assault. For each condition so identified, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition was either (i) caused or (ii) aggravated by her service-connected disabilities, including fibromyalgia and acquired psychiatric disorder. NOTE: With respect to the questions concerning aggravation, the examiner is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to aggravation. In formulating his or her opinions, the examiner should consider and address the competent medical and lay evidence of record, including but not limited to: (a) The Veteran’s service treatment records; (b) The Veteran’s post-service VA medical records; (c) The Veteran’s October 2008 DRO hearing testimony depicting the in-service assault; (d) The April 2008 Statement from the Veteran’s sister corroborating the Veteran’s in-service assault; and (e) The Veteran’s competent lay statements related to the onset and continuity of her symptomatology. If the examiner determines that the Veteran’s lumbar spine condition(s) is/are less likely than not due to service or caused and/or aggravated by her service-connected disabilities, the examiner should discuss what other factor(s) caused the disorder(s). A complete rationale must be provided for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.