Citation Nr: 21068676
Decision Date: 11/12/21	Archive Date: 11/12/21

DOCKET NO. 16-19 456
DATE: November 12, 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 low back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from May 1997 to May 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2014 by a Department of Veterans Affairs (VA) Regional Office (RO).

Previously, the Board denied the Veteran's claim for service connection for a bilateral hip disability and a low back disability in a June 2020 decision. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a joint motion for partial remand (JMPR) and remanded this matter back to the Board for actions consistent with the JMPR.

1. 2. & 3. Entitlement to service connection for a bilateral hip disability and a low back disability is remanded.

The Veteran asserts that he is entitled to service connection for a bilateral hip disability and a low back disability as secondary to his service connected bilateral knee disability.

In the JMPR, the parties asserted that the July 2019 VA medical opinions for the Veterans back and hips was inadequate. Specifically, regarding secondary service connection, the examiner determined that there was no data supporting a finding that the Veteran's service connected bilateral knee disabilities caused a permanent aggravation of the Veteran's back and hip disabilities. However, the examiner did not use the proper standard in providing this opinion. Instead of a permanent aggravation standard, CAVC has held that "any additional impairment of earning capacity  in non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase  regardless of its permanence" is compensable. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019); see 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

As such, a remand is necessary for new back and hip VA examinations so that the examiner can address aggravation under the correct standard.

The matters are REMANDED for the following action:

Obtain an opinion from an appropriate examiner regarding the following questions.  If the examiner determines that the requested opinions may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examiner.

(a)	Are the Veteran's back and bilateral hip disabilities at least as likely as not proximately due or the result of his service-connected bilateral knee disabilities?

(b)	Are the Veteran's back and bilateral hip disabilities at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected bilateral knee disabilities?

In providing the opinion, the examiner must use the standard articulated in Ward when addressing whether the Veteran's back and hip disabilities were aggravated by the Veteran's bilateral knee disability. 

Provide a rationale to support the opinion(s).  

 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. K. Hall, 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.