Citation Nr: 21070987 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-50 125 DATE: November 29, 2021 REMANDED Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a back disorder, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps from June 1990 to June 1994 and in the Army from May 2003 to May 2004, and from September 2005 to December 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. 1. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected disabilities. 4. Entitlement to service connection for a back disorder, to include as secondary to service-connected disabilities. 5. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected disabilities. The Veteran contends that he currently has bilateral hip, back, left ankle, and left knee disorders that are the result of his military service. In addition, he contends that these disorders were caused or aggravated by his service-connected right knee and ankle disabilities. To date, the Veteran has not undergone a VA examination to determine the nature and etiology of his bilateral hip and left ankle disorders. Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The Veteran's service connection claims for bilateral hip and left ankle disorders meets all the McLendon elements for a VA examination. The Veteran testified at his Board hearing that he has experienced bilateral hip, low back, left ankle and left knee pain that affected his ability to work an entire 40 hours as a union electrician, resulting in functional impairment. The United States Court of Appeals for the Federal Circuit (Court) has held that pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Because there is some evidence that the Veteran's bilateral hip and left ankle pain may be productive of functional impairment, it may be considered disabilities for which service connection may be granted even without an accompanying diagnosis. In addition, a review of the service treatment records (STRs) reveal that the Veteran was involved in a motor vehicle collision during active duty. Of note, the Veteran submitted a private nexus opinion in September 2021. The examiner, after a review of the claims file and a physical examination, gave a positive opinion that the bilateral hip and left ankle disorders were the result of military service. However, no rationale was given for this opinion. In addition, the examiner gave a positive opinion that the bilateral hip and left ankle disorders were caused by the service-connected right knee and ankle disabilities. As rationale, the examiner noted that the injury to the right knee and ankle misaligned the lower joints, causing the Veteran to walk with an antalgic gait which would allow increased stress on other body parts in the lower body joints groups. However, the Board finds that this opinion is based on an inaccurate background, as the evidence of record weights against a finding that the Veteran has had an altered gait at any time during the appeal period. A review of the post-service treatment records reveals that the Veteran's gait was found to be normal. Opinions based on inaccurate factual backgrounds are not entitled to any probative value. As such, there is insufficient medical evidence for the Board to decide these service connection claims. Therefore, a remand is warranted to obtain VA examinations on the nature and etiology of the bilateral hip and left ankle disorders. Regarding the back disorder, the Board notes that this matter was remanded in May 2021 to obtain a VA opinion that addressed the Veteran's testimony, private buddy statements, and November 2019 private medical opinion regarding the in-service motor vehicle collision. A VA opinion was issued in August 2021. The examiner gave a negative opinion that the back disorder is the result of military service. She noted that a review of the STRs were silent for complains or treatment for a back condition during service. The examiner also noted that the line of duty motor vehicle collision was reported as a minor collision with no complaints of back pain. Furthermore, the separation report of medical assessment was negative for back pain. Finally, the examiner noted that the Veteran was diagnosed with joint dysfunction in 2008 and a May 2011 treatment record noted a complaint of occasional back pain. In addition, the examiner gave negative opinions that the low back disorder, which clearly and unmistakably existed prior to service, was not aggravated beyond its normal progression by military service. She noted that the STRs were negative for recurrent back pain and separation report of medical assessment was negative for back pain complaints. In addition, the examiner noted that the Veteran did not sustain a significant injury to the lower back as a result of the motor vehicle collision, as he noted no complaints of back past post collision. The Board notes that there is no medical evidence demonstrating that the low back disorder existed prior to service. Furthermore, the examiner failed to address and render an opinion on whether the back disorder was caused or aggravated by the Veteran's service-connected right knee and ankle disabilities. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the August 2021 VA opinion is inadequate based on the examiner's failure to render an opinion as to whether the Veteran's back disorder was caused or aggravated by his service-connected right knee and ankle disabilities. As such, the Board remands this matter for the issuance of an addendum VA medical opinion. Regarding the left knee disorder, the Board finds that a remand is necessary to issue a Supplemental Statement of the Case (SSOC). The record shows that, following the certification of appeal to the Board in January 2018, the AOJ obtained a new VA examination for the Veteran's left knee in August 2021. The RO has not readjudicated this claim nor has it issued an SSOC. An SSOC is required to ensure due process of law. 38 C.F.R. §§ 19.31, 19.37. There is no evidence in the record indicating that the Veteran or her representative has waived this right. Therefore, the Board finds a remand is necessary for the issuance of an SSOC. 38 C.F.R. §§ 19.9, 19.31 (c). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for VA examinations to determine the nature and etiology of the Veteran's bilateral hip and left ankle disorders with a medical professional with appropriate expertise. The claims file must be reviewed and a notation made on the examination report that the claims file was reviewed. Based on the examination results, and a review of the record, the examiner must address the following: (a.) Identify any and all diagnoses found on examination related to the hips and left ankle. (b.) For each diagnosis found on examination, please state whether it is least as likely as not (a balance of positive and negative evidence) that the bilateral hip and left ankle disorder manifested during service or is otherwise related to service? The examiner is to address the Veteran's testimony, lay statements, and service treatment records which reveal that the Veteran was involved in a motor vehicle collision during active duty. (c.) If the answer to (b.) is negative, whether it is at least as likely as not that the bilateral hip and left ankle disorders were caused by the Veteran's service-connected disabilities, including but not limited to, his right knee and ankle disabilities? (d.) If the answer to (c.) is negative, whether it is at least as likely as not that the bilateral hip and left ankle disorders were aggravated beyond its normal progression by the Veteran's service-connected disabilities, including but not limited to, his right knee and ankle disabilities? (e.) Does the service connected right knee and ankle disabilities result in any altered gait? Is there evidence of uneven shoe wear? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record in formulating the requested opinions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Obtain a VA medical opinion regarding the Veteran's back disorder from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file and make a notation that the claims file has been reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the reviewer must address the following: (a.) Whether it is at least as likely as not (a balance of positive and negative evidence) that the Veteran's back disorder was caused by the Veteran's service-connected disabilities, including but not limited to: his right knee and ankle disabilities? (b.) If the answer to (a.) is negative, whether it is at least as likely as not that the Veteran's low back disorder was aggravated beyond its normal progression by the Veteran's service-connected disabilities, including but not limited to: his right knee and ankle disabilities? (c.) Does the service connected right knee and ankle disabilities result in any altered gait? Is there evidence of uneven shoe wear? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record in formulating the requested opinions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. After the above development, readjudicate the Veteran's claims, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. All evidence since the August 2021 Supplemental Statement of the Case should be considered. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.