Citation Nr: 21001658 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-18 437A DATE: January 11, 2021 REMANDED The issue of entitlement to service connection for a low back disability is remanded. The issue of entitlement to service connection for a bilateral hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1995 to August 1999. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction is currently with the RO in Atlanta, Georgia. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in August 2014. The transcript of the hearing has been associated with the claims file. These matters were previously before the Board at which times they were remanded for further development. 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a bilateral hip disability is remanded. The Veteran contends that he has a low back disability as a result of working as a truck driver constantly jumping on and off of 5-ton trucks. Alternately, the Veteran contends that he has a low back disability as a result of injuries sustained while playing football and basketball for his company teams. The Veteran contends that he has a bilateral hip disability as a result of an in-service fall in which he injured his knee. Alternately, the Veteran contends that he has a bilateral hip disability as a result of injuries sustained while playing football and basketball for his company teams. In this regard, a September 2015 VA examiner opined that the claimed conditions less likely than not had onset or was etiologically related to an in-service disease or event. In addressing the bilateral hips disability, the examiner reasoned that no hip condition was found in the service treatment records (STRs) and records subsequent to service were silent as to a hip condition until an August 2014 note when the Veteran complained of left hip pain since 2005. In addressing the low back disability, the examiner reasoned that there was no evidence of a back condition in service or subsequent to service until August 2014. The Veteran’s musculoskeletal symptoms are more likely than not attributable to events subsequent to service and his job in law enforcement that requires him to stand for long periods of time. The examiner further reasoned that the Veteran’s report of medical history was silent in July 1999 and February 1996. In October 2015 a VA examiner opined that the claimed conditions were less likely than not etiologically related to any in-service injury. In addressing the low back disability, the examiner reasoned that there was no documentation of back problems found in the Veteran’s STRs. Evidence of back problems were noted in his medical records in 2014. Normal examination in VA examination, no radiologic abnormality. There was no evidence of onset or chronicity of back problems in service. In addressing the bilateral hips disability, the examiner reasoned that there was no documentation of hip problems found in the STRs. Evidence of left hip problems in medical records note in 2014 which documented pain since 2005. Normal examination in VA examination, no radiologic abnormality. No evidence of onset or chronicity of hip problems in service. In February 2017, a VA examiner opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In addressing the low back, the examiner reasoned that the STRs/VBMS were silent for pathology/management of the lumbar spine during military service. Post discharge there was no documentation of chronic disease/pathology of the lumbar spine proximate to military service. Plain radiograph reported normal lumbar sacral spine. The vertebral bodies were of normal size and configuration. The spine is normally aligned with the disc spaces well maintained. There were no anterior or posterior listhesis or significant degenerative changes. In addressing the bilateral hips, the examiner reasoned that STRs/VBMS were silent for hip related pathology of the hips during military service. There was no documentation of chronic pathology/management of the hips, post discharge and proximate to military service. Plain radiographs reported "normal left hip and normal right hip". In January 2020 a VA examiner opined that claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no specific injury to the hips or low back documented during service and no further follow up care after the Veteran’s discharge in 1999 until noted in treatment records in a letter of support from a provider dated on August 8, 2014. The letter stated that the Veteran had been under care for various complaints, including hip and back pain, since 2004, which would have been five years after his discharge from active duty. The Board finds the VA opinions of record inadequate to decide the Veteran’s claims for service connection for a low back disability and service connection for a bilateral hip disability. First, the VA examiners relied on a lack of corroborating evidence of the Veteran’s in-service onset and post-service continuity of symptoms in reaching their opinions and did not address the Veteran’s credible statements regarding onset and continuity of symptoms. The December 2018 Board remand directives specifically asked that the examiner consider and address the Veteran’s statements regarding the onset and continuity of symptoms with respect to his disabilities, as well as his statements as to why he did not seek medical attention for the conditions during his active duty service. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Second, the Veteran’s representative presented a new theory of entitlement that requires an addendum medical opinion. Specifically, in a November 2020 Informal Hearing Presentation, the representative asserted that the Veteran has a low back disability and bilateral hip disability as a result of his service-connected pes planus and plantar fascitis and/or service-connected bilateral knee disabilities. His pes planus and plantar fascitis offset his balance and affect his gait, placing stress on his knees and ankle. The knees are forced in a direction of which they are not designed, and the poor functioning can make its way up to the hips and lower back. In light of the aforementioned deficiencies of the VA examinations of record, the Board finds that an addendum opinion should be obtained on remand. See 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). In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the clinician on remand consider the Veteran’s own descriptions of his experiences in service and during the years since service. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the file to the January 2020 VA spine examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has a low back disability that had its onset in service, or within one year of his separation from service, or is otherwise related to service? Please specifically discuss the Veteran’s contention that he has a low back disability as a result of working as a truck driver constantly jumping on and off of 5-ton trucks, or as a result of injuries sustained while playing football and basketball for his company teams. Please also specifically discuss the Veteran’s credible statements regarding onset and continuity of symptoms, as well as his credible statements as to why he did not seek medical attention during his active duty service. (b.) Is it at least as likely as not that the Veteran's low back disability was caused or aggravated by the Veteran's service-connected pes planus and plantar fascitis and/or bilateral knees disabilities? Please address both causation and aggravation and explain why or why not. Please discuss the contention that pes planus and plantar fascitis offset his balance and affect his gait, placing stress on his knees and ankle. The knees are forced in a direction of which they are not designed, and the poor functioning can make its way up to the hips and lower back. (c.) If the examiner finds the Veteran's low back disability was aggravated by his service-connected pes planus and plantar fascitis and/or bilateral knee disabilities, he/she should attempt to quantify the degree of aggravation beyond the baseline level. For the purpose of providing the opinions requested, please accept as valid the Veteran’s statements that he injured his back as a result of working as a truck driver, constantly jumping on and off of 5-ton trucks, or, in the alternative, that he developed a low back disability as a result of injuries sustained while playing football and basketball for his company teams, and state whether a nexus between the Veteran’s current back condition and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). 3. Return the file to the January 2020 VA hip examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has a bilateral hip disability that had its onset in service, or within one year of his separation from service, or is otherwise related to service? Please specifically discuss the Veteran’s contention that he has a bilateral hip disability as a result of an in-service fall in which he injured his knee, or as a result of injuries sustained while playing football and basketball for his company teams. Please also specifically discuss the Veteran’s credible statements regarding onset and continuity of symptoms, as well as his credible statements as to why he did not seek medical attention during his active duty service. (b.) Is it at least as likely as not that the Veteran's bilateral hip disability was caused or aggravated by the Veteran's service-connected pes planus and plantar fascitis and/or bilateral knee disabilities? Please address both causation and aggravation and explain why or why not. Please discuss the contention that pes planus and plantar fascitis offset his balance and affect his gait, placing stress on his knees and ankle. The knees are forced in a direction of which they are not designed, and the poor functioning can make its way up to the hips and lower back. (c.) If the examiner finds the Veteran's bilateral hip disability was aggravated by his service-connected pes planus and plantar fascitis and/or bilateral knee disabilities, he/she should attempt to quantify the degree of aggravation beyond the baseline level. For the purpose of providing the opinions requested, please accept as valid the Veteran’s statements that he injured his hips as a result of an in-service fall in which he injured his knee, or, in the alternative, that he developed a bilateral hip disability as a result of injuries sustained while playing football and basketball for his company teams, and state whether a nexus between the Veteran’s current hip condition and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.