Citation Nr: 21000857 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 06-29 311 DATE: January 6, 2021 REMANDED Entitlement to service connection, to include on a secondary basis, for right hip disorder is remanded. Entitlement to a compensable evaluation for left hip bursitis with limited abduction, adduction, internal rotation, and external rotation is remanded. Entitlement to an evaluation in excess of 10 percent for left hip bursitis with limited flexion is remanded. Entitlement to a compensable evaluation for left hip bursitis with limited extension is remanded. Entitlement to an evaluation in excess of 10 percent prior to November 13, 2012, in excess of 20 percent from November 13, 2012 to October 13, 2016, and in excess of 40 percent thereafter for low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1986 to August 1986 and in the United States Army from March 2001 to April 2005. These matters come on appeal before the Board of Veterans’ Appeals (Board) from various rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO). Specifically, in an October 2008 rating decision, the RO denied the Veteran’s claims for increased rating for left hip disability and for service connection for right hip disability. In pertinent part of a June 2009 rating decision, the RO denied the claim for increased ratings for the low back disability. In July 2015, the Veteran and his spouse, L.H., testified before the undersigned Veterans Law Judge during a Board hearing held at the RO. A transcript of the hearing has been associated with the claims folder. By way of background, the current issues were initially remanded by the Board in June 2016 for further development. Subsequently, in April 2019, the Board denied, in pertinent part, the increased rating issues related to the left hip and low back disabilities and remanded the service connection right hip issue. The Veteran appealed the increased rating issues related to the left hip and low back disabilities in the April 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In March 2020, the Court issued a Joint Motion for Partial Remand (JMPR) and vacated and remanded the Board decision regarding the claims of entitlement to increased ratings for left hip bursitis with limited abduction, adduction, internal rotation, and external rotation; left hip bursitis with limited flexion; left hip bursitis with limited extension; and low back disability. As such, these claims have now been returned to the Board for further action. Entitlement to service connection, to include on a secondary basis, for right hip disorder is remanded. As noted in the April 2019 Board decision, a remand was warranted to obtain an adequate VA opinion for the right hip disorder that considers service treatment records (STRs) that noted torn right hip ligament during active service in October 2004. See April 2019 BVA Decision. The Board also notes an April 2004 STR that noted pulled right hamstring and a November 2004 STR that noted the Veteran had a T3 profile for bilateral hips. See September 2008 STR – Medical – Photocopy and April 2015 STR – Medical. Pursuant to the April 2019 Board remand directives, another VA opinion was obtained in October 2019 which provided a negative etiological opinion for the right hip disability. See October 2019 C&P Exam. However, the Board notes that the October 2019 VA examiner does not appear to have considered the right hip complaints during service as requested in the prior remand, noting there was no evidence in a review of the STRs to support a diagnosis of a right hip condition during active duty period. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Another remand is needed to obtain a VA etiological opinion that addresses the reports of right hip complaints in the STRs. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.”) (citing Reonal). Furthermore, as asserted in the January 2021 appellate brief, through his representative, the Veteran’s right hip disability has been aggravated by additional service-connected disabilities, to include his low back disability and psychiatric disorder, specifically highlighting that in the context of secondary service connection, aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995); see January 2021 Appellate Brief. On remand, such VA opinions should be obtained. (Continued on the next page) Entitlement to a compensable evaluation for left hip bursitis with limited abduction, adduction, internal rotation, and external rotation is remanded. Entitlement to an evaluation in excess of 10 percent for left hip bursitis with limited flexion is remanded. Entitlement to a compensable evaluation for left hip bursitis with limited extension is remanded. Entitlement to an evaluation in excess of 10 percent prior to November 13, 2012, in excess of 20 percent from November 13, 2012 to October 13, 2016, and in excess of 40 percent thereafter for low back disability is remanded. In the March 2020 JMPR, the Court found that the September 2008, May 2009, May 2010, and October 2016 VA examinations are inadequate pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2015); and Sharp v. Shulkin, 29 Vet. App. 26 (2017). See March 2020 CAVC Decision. Specifically, as related to the left hip bursitis, the Court said the September 2008 VA medical examination noted reports of flare-ups but did not provide an estimate as to the functional impairment of the left hip during a flare-up to include discussion or information pertaining to where the pain began or the level of impairment of such impairment or loss. The Court noted that the October 2016 VA medical examination recorded the Veteran’s complaints of pain on flexion, extension, abduction, adduction, internal and external extension and similarly did not estimate any resulting degree of limitation of motion. The Court noted the May 2010 VA examination did not adequately address the Veteran’s flare-ups and did not express the Veteran’s physical limitation in terms of range of motion. The Court noted the September 2008 and October 2016 VA examinations each only contained one set of range of motion measurement and as such did not include both weight-bearing and nonweight-bearing testing for pain on both active and passive motion, nor contained an explanation as to whether such testing was appropriate or possible. Regarding the low back disability, the Court noted that the May 2009, May 2010, and October 2016 VA examinations contained one set of range of motion findings and did not provide an estimate for functional impairment due to pain on motion. The Court also noted the May 2010 VA examination did not provide sufficient information regarding flare-ups. Based on the foregoing, the Board finds that new VA examinations should be afforded to the Veteran. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all identified private treatment records from the Veteran not already associated with the file. 2. After development #1 has been completed, schedule the Veteran for examination(s) by appropriate examiner(s) to determine the current nature and severity of his service-connected left hip bursitis and low back disabilities. The examiner(s) should review pertinent documents in the Veteran’s claims file and this Remand in connection with the examination(s). All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. a. The examiner(s) should conduct range of motion studies for both left hip bursitis and low back disabilities and test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner should also assess and approximate any functional impairment due to such factors as flare-ups and pain, weakness, fatigability, or incoordination (to include as due to repeated use over time), and express and approximate this functional impairment in terms of additional range of motion loss. If the examiner(s) is unable to assess and approximate any further functional impairment in terms of loss of range of motion, the examiner(s) should explain why that information could not be determined. b. The VA examiner(s) should comment on whether range of motion measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for all prior VA examinations on the left hip bursitis and low back disabilities. If the examiner(s) is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. After development #1 is completed, send the Veteran’s claims file to an appropriate medical professional to obtain an addendum opinion regarding the nature and etiology of the Veteran’s claimed right hip disability. The Veteran’s claims file must be made accessible to the designated professional for review. Following review of the Veteran’s claims file and this Remand in connection with the examination, the examiner is then requested to respond to the following: a. Identify any right hip disability found to be present since the date of the claim (i.e., since August 2008). If the Veteran’s right hip pain cannot be attributed to an underlying diagnosis, still address whether any such condition manifests in functional impairment such as limitation of motion, weakness, instability, or the like. A condition manifested by pain and functional impairment is in fact a disability for VA purposes. b. For an identified right hip disability, determine whether it is at least as likely as not (a 50% or better probability) that such disability had its onset during active service, or is otherwise etiologically related to his period of service. The examiner should consider the STRs in October 2004 that noted torn right hip ligament, an April 2004 STR that noted pulled right hamstring, and a November 2004 STR that noted the Veteran had a T3 profile for bilateral hips. c. For an identified right hip disability, determine whether it is at least as likely as not (a 50% or better probability) that such disability is caused by any of his service-connected disabilities, to include his left hip bursitis disability, low back disability, and/or psychiatric disorder. d. For an identified right hip disability, determine whether it is at least as likely as not (a 50% or better probability) that such disability is aggravated by any of his service-connected disabilities, to include his left hip bursitis disability, low back disability, and/or psychiatric disorder. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” A complete rationale for any opinion expressed should be provided. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided, and whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. A VA examination must be conducted only if the RO or examiner deems it necessary to provide the opinion. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.