Citation Nr: 21073753 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-25 055 DATE: December 10, 2021 REMANDED Entitlement to service connection for arthritis, upper extremities, to include as secondary to service-connected low back disability is remanded. Entitlement to service connection for arthritis, lower extremities, to include as secondary to service-connected low back disability is remanded. Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected low back disability, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from June 1973 to April 1977. These issues come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's claims for entitlement to service connection for a heart disorder and a low back disorder were granted in an August 2020 rating decision. Thus, these claims are no longer on appeal and the Board does not have jurisdiction at this time. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. 1. Entitlement to service connection for arthritis, upper extremities. 2. Entitlement to service connection for arthritis, lower extremities. The Veteran contends that his bilateral upper and lower extremity arthritis are due to his military service. He underwent a VA examination in July 2020. The examiner noted the report of in-service joint pain due to falling down a flight of stairs and having other service members step on him. In addition, he noted the Veteran's reports of having pinched nerves in his left elbow and needing to have repeated bilateral carpal tunnel surgeries. The examiner found evidence of current arthritis for the upper and lower extremities bilaterally, but attributed this to aging and not due to active duty. In addition, the examiner found that the bilateral upper and lower extremity disorders did not impact the Veteran's ability to work. The examiner then gave a negative opinion that the upper and lower extremity arthritis were the result of military service. He noted that in service there was not a continuation of symptoms needing further care or follow up. Additionally, he also noted that no physical profiles were found in the service treatment records (STRs) and that all symptoms noted on the separation report of medical history (RMH) were consistent with acute resolved problems without indication of chronic problems and also marked by a service member consistent with not being medically trained. The examiner also found that there was no diagnosis or problem of arthritis during service by any medical provider and was otherwise without complaints of. He noted that the separation RMH findings are only consistent with a lay person reporting symptoms and what a lay person would know about it who is not medically educated. The examiner went on to note that the Veteran marking 'yes" to arthritis was not a medical diagnosis or problem, and in no way gives factual evidence that he had arthritis/arthritic condition during service. A review of all medical records available to the examiner showed that the Veteran did not have an arthritic type condition that would involve arthritis specialists or treatment. He also noted that the Veteran's findings with musculoskeletal issues after service are due to acute injury at the time of incident or due to his inherent natural development with aging such as spondylosis of cervical spine. He further noted that the Veteran continued employment after service requiring daily physical labor until partial retirement in 2013 as reported by Veteran. The Board notes the VA examination report includes that opinion that the continued employment coupled with no continued chronic skeletal muscular complaints until 2014 "preclude a continued, due to, or aggravated by any imaginable arthritic condition of arthritis from service." While this sentence is incomplete, it is obvious that that the intention of the author was to indicate there was no finding of arthritis linked to active duty when the document as read in total. Finally, the examiner noted that the only findings on examination were of the Veteran's natural aging which has occurred and progressed without any known etiology to service complaints/findings or problems. 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 July 2020 VA examination is inadequate for adjudicative purposes. In general, the Board has a duty to discuss all theories of entitlement reasonably raised by the record. Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). The Board must also consider all reasonably raised theories even if not specifically raised by the claimant. Douglas v. Derwinski, 2 Vet. App. 435 (1992). In the context of a service connection claim, theories of entitlement such as direct service connection, secondary service connection and presumptive service connection are deemed as part of the appeal regardless of when the issue has been raised in the record. Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). Based on a review of the record, the Board finds that a secondary service connection theory for the Veteran's upper and lower extremity arthritis based on his service-connected low back disability has been raised. However, no opinions have been rendered as to whether the upper and lower extremity arthritis were caused or aggravated by the low back disability. As such, a remand is warranted to obtain a VA medical opinion on secondary service connection. 3. Entitlement to a bilateral hip disorder, to include as secondary to service-connected back disability. The Veteran contends that his bilateral hip disorder is the result of military service. In addition, he contends that his hip disorder was caused or aggravated by his service-connected low back disability. To date, the Veteran has not undergone a VA examination to determine the nature and etiology of his bilateral hip disorder. 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 claim for service connection for a bilateral hip disorder meets all the McLendon elements for a VA examination. The Veteran has submitted lay statements stating that he experienced joint pain from falling down a flight of stairs during active duty. In addition, he has alleged that his bilateral hip pain was caused or aggravated by his now service-connected low back disability. A review of the medical evidence of record reveals complaints of radiating hip pain due to severe lower back pain that did not resolve post lumbar laminectomies. However, there is insufficient competent medical evidence in the Veteran's claims file for the Board to decide this service connection claim. Therefore, this matter will be remanded for a VA examination. The matters are REMANDED for the following action: 1. 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). 2. Obtain a VA medical opinion on the nature and etiology of the Veteran's upper and lower extremity arthritis from a medical professional with appropriate expertise. The claims file must be reviewed by the examiner and a notation made on the examination report that the claims file was reviewed. If the examiner cannot render the requested opinions without a new examination, then schedule the Veteran for an examination. Based on a review of the record, and a new examination if necessary, the examiner 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 upper and lower extremity arthritis were caused by his service-connected disabilities, including but not limited to: his low back disability? The examiner is to assume current arthritis diagnoses based on the July 2020 VA examination report. (b.) If the answer to (a.) is negative, whether it is at least as likely as not that the Veteran's upper and lower extremity arthritis were aggravated beyond its normal progression due to his service-connected disabilities, including but not limited to: his low back disability? 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). 3. Schedule the Veteran for a VA examination regarding the Veteran's bilateral hip disorder from 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.) Whether it is at least as likely as not (a balance of positive and negative evidence) that the Veteran's bilateral hip disorder has its onset in service or is otherwise related to service? (b.) If the answer to (a.) is negative, whether it is at least as likely as not that the Veteran bilateral hip disorder was caused or aggravated by the Veteran's service-connected disabilities, including but not limited to: his low back disability? The examiner must provide opinions for both causation and aggravation. 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). 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.