Citation Nr: 21065907 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-46 036 DATE: October 27, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1984 to April 1987. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for an additional 30 days to allow for the submission of evidence in support of the claim. Thereafter, VA did not receive any additional evidence from either the Veteran or his representative. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hip is remanded. 3. Entitlement to service connection for a low back disability is remanded. Issues 1-3: The Veteran contends that his bilateral hip and low back disabilities stem from the rigors of his service as a member of a field artillery unit performing field exercises while stationed in Korea from 1986 to 1987. See Hearing Transcript at 3 (April 2021). The record reflects the Veteran has clarified he seeks service connection for a lumbar spine disability. See NOD (September 2014). The Veteran testified that he worked post service from1995 to 2011 in county law enforcement and reported he did not have copies of the physical examinations associated with that employment. See Hearing Transcript at 11-12 (April 2021). Although the Veteran was afforded VA spine and hip examinations in September 2016, the Board finds the accompanying medical opinions are inadequate for adjudicative purposes, and therefore, remand is necessary to obtain new examinations. It is initially noted that the Veteran's DD 214 shows his military occupational specialty (MOS) was equipment records and parts specialist. The Veteran's military personnel records show he was stationed in Korea, from April 1986 to April 1987, during which time he was assigned to a field artillery unit and served as a Prescribed Load List/The Army Maintenance Management System (PLL/TAMMS) clerk. It is further noted the Veteran's service treatment records (STRs) are incomplete and mostly missing. The STR jacket contains an undated, unsigned memorandum from the US Army Separation Transfer Point simply stating that the Veteran's Health Records were not available at the time of separation. See STR Medical (February 2014). Additionally, a Disposition Form (DA Form 2496) dated in April 1987, reflects the Veteran declined to undergo a separation medical examination and he was medically cleared to return to the continental United States (CONUS). Id. In an associated written statement, the Veteran reported that his medical records were lost and that he only received a medical clearance form to return to CONUS. Id. Further, VA received a response from the National Personnel Records Center (NPRC) in February 2014 indicating that all available records had been associated with the Veteran's electronic claims file. Lastly, the Veteran reported that, although he was treated in service for his claimed conditions on several occasions, his STRs were lost during transit from Korea back to the US. See Form 9 (September 2016). In circumstances where STRs are not available, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Private medical records submitted in support of the claim do not contain any nexus opinions relating the Veteran's bilateral hip and low back conditions to his service. Instead, the records show treatment for symptoms such as pain, stiffness and swelling related to right and left hip osteoarthritis. The private records indicate the Veteran was seen several years ago (early 1990's) by a private physician who diagnosed left hip osteoarthritis and reflect the Veteran underwent a left total hip replacement in August 1999. See Medical Treatment Records Non-Government Facility (September 2014). A buddy statement was submitted by a fellow servicemember familiar with the Veteran's bilateral hip complaints. The statement indicates that, prior to his deployment to Korea, the Veteran was treated for bilateral hip injuries stemming from several field exercises and physical training. See Buddy/Lay Statement (October 2014). VA examination reports reflect diagnoses of osteoarthritis of the right and left hips, and degenerative disc disease of the lumbar spine. See C&P Exams (September 2016). The Veteran was noted to have total hip joint replacements in both hips. The medical opinion concluded the Veteran's bilateral hip disabilities were not incurred in or related to service. The rationale for that conclusion was as follows: "It is impossible to determine if the service caused his hip problems. He was discharged in 1987. STRs were lost. Private medical doctor note in 1999 indicated hip pain only for several years. This was 12 years post discharge. Buddy statement does not contribute to determining service connection because it does not indicate specific injuries. It is too general. RO will have to make decision on service connection without concrete medical evidence of cause. Medical opinion would be speculative." Furthermore, in regard to the etiology of the lumbar spine disability, the medical opinion reflects consideration only on the basis of secondary service connection, concluding that the low back condition is typical of age-related degeneration rather than proximately due to or the result of bilateral hip conditions. The Board finds the examinations and associated opinions inadequate for a number of reasons. First, neither hip nor spine examination reports contain the Veteran's reported history as to the nature, onset, progression and severity of his bilateral hip and low back symptoms. Second, the negative medical opinion for the bilateral hips relies solely on the lack of STRs and medical documentation in establishing that the Veteran sustained bilateral hip injuries during service. Thus, the opinion does not reflect any meaningful consideration of the Veteran's lay statements. Furthermore, it appears to suggest that a non-speculative opinion can only be provided with "concrete medical evidence of cause." See Dalton v. Nicholson, 21 Vet. App. 23 (2007). See also, McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). Finally, although the Veteran has not asserted that his low back disability is caused by his bilateral hip disabilities, the opinion is limited to a brief statement addressing secondary causation rather than direct causation. As noted above, the Veteran asserts that his low back disability is related to the physical rigors involved in field exercises. See Hearing Transcript (April 2021). Thus, the opinion is inadequate in that it applies the incorrect legal standard on the question of causation. In view of the foregoing, and to ensure VA has met its duty to assist, remand for new VA examination is necessary. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, it is noted that, during the hearing, the undersigned VLJ attempted to assist the Veteran in identifying potential sources of information that may help in substantiating his claims. In remanding these matters, the Veteran will be given the opportunity to submit or request that VA obtain evidence on his behalf. While the Board recognizes and regrets that the Veteran's STR's are unavailable, nevertheless, the Veteran is reminded that VA's duty to assist in the development of his claim is not a one-way street, and he cannot passively wait for it in those circumstances where he may or should have information that is essential to establishing his claim for service connection. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs, symptoms, or treatment of his claimed bilateral hip and low back conditions. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain any available VA treatment records from approximately 2000 to the Present. 3. Schedule the Veteran for an examination by an appropriate clinician regarding the nature and etiology of his bilateral hip disabilities and low back disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on an interview of the Veteran and a review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any of the above disabilities. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (2): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. NOTE (3): If another etiology is the more likely cause of the disability, then identify that etiology and fully explain. The conclusions must be supported with data (e.g. history, findings, etc.) along with a reasoned medical explanation connecting the two. The clinician should provide an opinion, with supporting rationale, as to the following: As to each hip and the lumbar spine disability, including arthritis, whether it is at least as likely as not (1) began during service; or (2) manifested within one year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service; or (4) is related to an in-service injury, event, or disease, including but not limited to the Veteran's report of bilateral hip and back pain stemming from field exercises that required maneuvering, ascending and descending mountains and hills, and carrying heavy rucksacks on his back. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.