Citation Nr: 21067592 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-53 810 DATE: November 4, 2021 REMANDED Service connection for left hip condition, to include as secondary to service-connected degenerative arthritis of the lumbosacral spine, is remanded. Service connection for right hip condition, to include as secondary to service-connected degenerative arthritis of the lumbosacral spine, is remanded. Service connection for right shoulder impingement syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to July 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Portland, Oregon. By way of background, these matters were before the Board as part of a December 2020 hearing, a transcript of which has been associated with the claims file and reviewed. Following the hearing, in an April 2021 decision, the Board granted service connection for degenerative arthritis of the lumbosacral spine and remanded the claims addressed here in as well as service connection for a left shoulder condition. While in remand status, the RO granted service connection for a left shoulder condition. Thus, both of those claims have been granted in full and are no longer before the Board for review. Grantham v. Brown, 114 F.3d 1156, 1158-59 (1997). Regarding the remaining claims, the Board finds remand is again necessary to ensure the Veteran is afforded adequate VA examinations. 1. Service connection for left hip condition, to include as secondary to service-connected degenerative arthritis of the lumbosacral spine, is remanded. 2. Service connection for right hip condition, to include as secondary to service-connected degenerative arthritis of the lumbosacral spine, is remanded. The Veteran contends he has left and right hip conditions that are related to service or are secondary to service-connected degenerative arthritis of the lumbosacral spine. The Board finds the evidence of record is insufficient to resolve these claims and remand is necessary to ensure substantial compliance with the Board's April 2021 remand directives and that the Veteran is afforded an adequate VA examination. In accordance with the April 2021 remand directives, the Veteran was afforded a July 2021 VA examination during which the examiner opined that the Veteran's hip conditions were less likely than not related to service based, in-part, on the rationale that there was no objective record of hip symptoms or injury during service and that the Veteran's history of onset of hip pain while playing football during service was subjective only without supporting evidence. The Board notes, however, the examiner was directed to address and consider whether the very act of playing football games and / or the 1970 back injury could be related to the Veteran's current hip condition(s). While the examiner opined that the record lacked supporting evidence, the Board notes the Veteran competently and credibly testified to participating in football games including falling and tackling during said games, which remains unaddressed by the examiner. The examiner noted consideration of the lay statements, previous VA examination, and private opinion of record, but the examiner failed to reconcile these differing statements and opinions as directed. Further, the examiner was directed to address whether the Veteran's service-connected degenerative arthritis of the lumbosacral spine aggravated a left and / or right hip condition. The examiner opined that the Veteran's left and right hip conditions are not at least as likely as not aggravated beyond the natural progression because degenerative arthritis is not a systemic condition; therefore, a lumbar condition is less as likely as not to cause hip DJD. Risk factors for DJD include advancing age and DJD is a progressive condition over time. Worsening of symptoms is an expected natural progression over time. The Board finds this opinion does not sufficiently address aggravation as the rationale is based upon causation. Thus, remand is necessary to obtain an opinion addressing aggravation specifically. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, these claims are remanded to obtain addendum opinions. 3. Service connection for right shoulder impingement syndrome is remanded. The Veteran contends his right shoulder impingement was aggravated during service or is otherwise related to service. The Board finds remand is again necessary to ensure the Veteran is provided an adequate VA examination. As directed within the Board's April 2021 remand, the Veteran was afforded another VA examination in July 2021. The examiner opined that the Veteran had a right shoulder condition that clearly and unmistakably existed prior to service that was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness based, in-part, on the rationale that while there was a "history of pain in 1972," the Veteran was able to continue playing football after which is inconsistent with aggravation. The Veteran, however, testified that he first started having issues with his shoulders while playing football in MCAS Beaufort in relation to which he sought medical treatment. The Veteran has also contended that he experienced symptoms despite being able to continue playing football which the examiner did not address. Further, the examiner relied upon a "gap in care" between 1972 and 2015 as being inconsistent with aggravation beyond natural progression. The Veteran, however, testified that his right shoulder symptoms started while playing football during service and continued following separation with self-treatment according to the Veteran's physical therapy training, which remains unaddressed. The record also contains a buddy statement discussing the Veteran experiencing right shoulder pain since playing football during service. Thus, remand is necessary for reconciliation with the lay evidence of record including the Veteran's lay statements of symptoms. See Miller v. Wilkie, 32 Vet. App. 249 (2020). The Board also specifically directed the VA examiner to reconcile differing conclusions from the December 2015 VA examination and January 2021 private opinion of record. While the examiner acknowledged review of the lay statements and opinions of record, he did not reconcile any differing opinions. Finally, as part of the Board's April 2021 remand, the Board directed that if the Veteran had a shoulder condition that was not aggravated by service, the examiner should opine whether the Veteran's current right shoulder disability is directly related to service, to include participating in football games and the June 1972 injury. To this point, the Board notes the Veteran's December 2020 testimony that he experienced an injury in 1972 to a different part of the shoulder than the injury noted upon entry. An opinion addressing this directive was not rendered. Thus, this claim is remanded to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to the July 2021 VA examiner, if available, or to another appropriate examiner for review. The examiner should render an opinion, including rationale, addressing the following: - Whether the Veteran's left and / or right hip conditions are at least as likely as not related to service, to include the 1970 back injury and participating in football games? In so opining, the examiner is directed to address and consider the Veteran's lay statements of experiencing hip pain since playing football during service as well as the Veteran's statements that he played football which included falls and tackles. - Whether the Veteran's left and / or right hip conditions are at least as likely as not aggravated by his service-connected lumbar spine disability. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 2. Return the entire claims file and this remand to the July 2021 VA examiner, if available, or to another appropriate examiner for review. The examiner should render an opinion, including rationale, addressing the following: - Whether the Veteran's right shoulder impingement syndrome clearly and unmistakably existed prior to service? In so opining, the examiner is directed to address and consider the Veteran's December 2020 testimony regarding his pre-service injury. - If so, whether the Veteran's right shoulder impingement syndrome was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In so opining, the examiner is directed to address and consider the Veteran's lay statements of experiencing right shoulder symptoms since playing football during service and seeking medical treatment as well as the lay evidence of record. The examiner is also directed to consider the Veteran's contention that he experienced symptoms despite being able to continue playing football. The examiner is reminded that a lack of post-service treatment records should not form the sole basis of any opinion, as the Veteran has competently and credibly testified that he self-treated his symptoms according to his physical therapy training. - If it is determined that the Veteran's right shoulder condition did not pre-exist service and / or was not aggravated in service, determine whether it is at least as likely as not that such current disability had its onset during service, or is otherwise the result of a disease or injury during service, specifically to include participation in football games and the June 1972 injury. In so opining, the examiner is directed to address and consider the Veteran's December 2020 testimony regarding his pre-service injury and in-service 1972 injury as well as the Veteran's testimony regarding repeated falls and tackles during football games and experiencing symptoms since playing football during service and continuing since separation. The examiner is reminded that a lack of post-service treatment records should not form the sole basis of any opinion, as the Veteran has competently and credibly testified that he self-treated his symptoms according to his physical therapy training. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner 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. 3. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, Associate 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.