Citation Nr: 21076653 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 11-27 397 DATE: December 27, 2021 REMANDED Service connection for a low back disability is remanded. Service connection for a right hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2011 ratings decision. This is the FIFTH remand in this appeal and the Board expects the Agency of Original Jurisdiction (AOJ) to treat this matter, on appeal and back before the RO/AOJ, with due regard for the remand instructions below. 1. Service connection for low back disability is remanded. In its October 2018 remand, the third remand in this case, the Board directed that the AOJ to obtain a VA medical opinion from an orthopedist or an orthopedic surgeon regarding the etiology of the Veteran's lumbar spine disability and right hip disability. While the need for a physical examination was left to the discretion of the examiner, the Board's order required the examiner to review the May 2017 VA examination report, the Board's remand decision, and the entire claims file. Among the specific questions posed by the Board's October 2018 remand were whether it is at least as likely as not that the Veteran's lumbar spine disability or right hip disability is caused or aggravated by his service-connected right knee disability (or scar) or his service-connected left hip disability (i.e. secondary service-connection). The Board noted that an internist performed the Veteran's May 2017 examination because the VA determined that an orthopedist or orthopedic surgeon was not available. The Board remanded the matter for the purpose of obtaining a specialist's etiological opinion on the Veteran's specific and complex presentation. The Board's October 2018 remand also directed the AOJ to request treatment records from Dr. G.C. and Dr. T.S. at Hastings Orthopedics and to update the file with the results of those efforts. In November 2019, a contract orthopedic surgeon reviewed the Veteran's claims file and reported her opinions regarding etiology. She asserted, "The Veteran's right hip arthritis is due to age related changes (and natural progression of disease) and not service-connected." She also stated, "There is no medical support for the development of arthritis in another body part due to arthritis in a different body part." She made similar findings regarding the Veteran's lumbar spine condition. While the VA examiner is an orthopedic surgeon, the Board found her work inadequate for the purpose of evaluating the Veteran's claims. She relied almost entirely on the lack of records in the Veteran's file to reach her negative nexus opinion about the Veteran's right hip and low back conditions, and she did not address lay statements by the Veteran. She did not opine as to the etiology of the Veteran's right hip length discrepancy. She did not meaningfully address secondary service-connection for either of the claimed disabilities. Due to these deficiencies, the Board was forced to remand this matter again in October 2020, the fourth remand, for a more thorough and coherent rationale supporting the conclusions as to the etiology of the Veteran's low back and right hip conditions. Later in October 2020, a VA physician completed a medical opinion disability benefits questionnaire (DBQ), and, unable to form an opinion as to etiology due to inconsistencies in previous opinions and the procedural history, suggested "this Veteran be interviewed and examined by a seasoned, skilled compensation and pension orthopedic physician examiner (an orthopedic surgeon), who could possibly shed more light on all of this veteran's complicating and inseparable medical and mechanical comorbidities." Such a 'seasoned and skilled' examiner would be best positioned to "'untangle' this Veteran's orthopedic contentions" in the view of that physician. In June 2021, a contract advanced practice registered nurse-family nurse practitioner completed DBQs addressing the Veteran's lower back and right hip conditions. The examination consisted of an in-person examination and a review of the Veteran's entire VA e-folder. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The June 2021 examiner's reports are scattered and difficult to discern and interpret. The examiner did comment specifically on her review of the Veteran's entrance exam (25 February 1966) (noting only reports of torn right knee ligament and scar), separation exam (January 1970), DD214, STRs, and VA treatment records from 2009, 2010, and 2011 (no knee or back pain noted or denied). The comments sections also contain the following notations regarding the Veteran's medical records reviewed: October 22, 2020 remand letter references August 2011 VA treatment record in which provider noted the Veteran has one hip that is a little bit shorter, the right than the left, and opines that this was the etiology of his low back pain and possibly the etiology of his right knee pain VA treatment notes from regular physical exams (4-26-2019, 10-26-2018, 4-26-2018, 10-26-2017) includes findings of low back pain, treatment by outside chiropractor, tenderness of the lumbar spine, arthritis of the back and hips, and (as shown on X-ray) moderate lumbar scoliosis with minimal anterolisthesis of L5 on L4, moderate multilevel degenerative disc disease, and multilevel degenerative facet disease September 2018 Statement by the Veteran's Representative argues that the Veteran believes there is continuity of symptoms from service to the present There is a cryptic notation about a 2017 visit where the Veteran reports chronic back pain controlled by Aleve May 24, 2017 previous DBQ with lumbar spine X-rays shows multilevel degenerative disc disease with facet arthrosis, decreased motion of the lumbar spine May 2017 VA examination Veteran reports wear and tear on his back during service and worsening back pain afterward December 18, 2014 Ratings Decision letter right knee degenerative joint disease, service-connected, 10 percent rating (effective 4-20-2011); right knee scar, service-connected, noncompensable (effective 4/20/2011); back, left hip, and right hip conditions all associated with right knee condition, not service-connected and not secondary August 2011 VA treatment record in which the provider opines that the Veteran's low back pain was due to a hip length discrepancy April 27, 2011 Veteran states in his claim that his chiropractor told him that his hips are not level because of his knee instability and that this is causing back and neck pain March 1, 2003 - Statement of Claim (related to hearing loss) 1970-1980 - "Dr. T., Chiropractor Superior NE, diagnosis uneven hips while adjusting my back 1970-1980" The examiner concluded that the claimed right hip condition and low back condition, including arthritis, was less likely than not etiologically related to the Veteran's military service. In the case of the low back, the examiner concluded that the Veteran's lumbar spine arthritis "reflects age-related degenerative changes." Regarding the right hip, the examiner stated that medical literature does not support a link between arthritis in one joint causing arthritic changes in another joint. The only other basis cited by the examiner in support of her conclusions was the fact that there are no records of complaints, treatments, or diagnoses for the Veteran's conditions until 2011, about 41 years after he left active service. The reports do not discuss in any depth the potential for secondary connection via right knee or left hip conditions for which the Veteran has service-connected ratings. The reports do not meaningfully address aggravation or secondary service-connection. That is to say there is no medical analysis addressing whether the symptoms and presentations of the Veteran's right knee or left hip conditions would cause or contribute to the presence of lower back or right hip disabilities, including pain and arthritis, and no medical analysis addressing aggravation beyond normal progression along those lines. In short, the June 2021 examination reports merely repeat everything stated in the examination reports already found deficient by the Board with no added analysis, evaluation, or discussion. The conclusory statements in the June 2021 reports are as unhelpful now as they were in 2019. Furthermore, they were compiled by a practitioner who is less qualified in this field than the one who wrote the November 2019 reports and less qualified than the level recommended in the Board's 2018 remand. The Board notes the file currently contains records from Dr. G.C. and Dr. T.S., consistent with the remand instruction referenced above. However, there are no orthopedic or chiropractic records pre-dating the Veteran's April 2011 claim, in contrast to the Veteran's 2011 statement that his chiropractor had previously told him that his hip length discrepancy was due to his knee condition. Also, there are no records from any doctor in Superior, Nebraska as identified by the Veteran. The Veteran has been provided with numerous notifications and opportunities to obtain and present such records in support of his claim and has not done so. If any records of treatment, diagnosis, or evaluation of his hip or back conditions prior to 2011 are available to the Veteran, he should submit those records and the VA must assist him in doing so. At present, there is no record in the file of a chiropractor, VA or private, reporting squarely that the Veteran's hip or back condition is related to any other condition. The Board acknowledges that direct service connection and chronic condition presumption may have little support in the records currently in the file. But the Veteran has service-connected disabilities in two joints (right knee and left hip) adjacent to the joints for which he currently seeks service connection (lumbar spine and right hip). This raises the causal question whether the impairment associated with the Veteran's service-connected disabilities may have caused the claimed disabilities or aggravated them. This is a question the examiner must coherently answer. To do so, the AOJ requires the assistance of a medical opinion from a "seasoned, skilled compensation and pension orthopedic physician examiner (an orthopedic surgeon)." 2. Service connection for right hip disability is remanded. Much of the discussion above pertains to both the low back and right hip disabilities in terms of how both of those conditions have been evaluated to date. For the reasons outlined above, the issue of service connection for right hip disability is also remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2021 to present. 2. Ask the Veteran to complete a VA Form 21-4142 for any chiropractor from whom he sought treatment for his low back and right hip prior to April 2011. Make two requests for the authorized records from any providers identified by the Veteran, unless it is clear after the first request that a second request would be futile. All attempts must be documented in the electronic file, to include the unavailability of any identified records or providers. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records. 3. Arrange for an examiner with expertise in orthopedics, such as an orthopedic surgeon with prior VA examination experience, to review the entire claims file for this Veteran's claims related to back and hip conditions. A new physical or telehealth examination is only required if deemed necessary by the examiner. The examiner must provide opinions as to the following: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that any current low back disability, including arthritis, began in service, was caused by service, had its onset within one year of the Veteran's separation from active duty, or is otherwise related to the Veteran's active service. b. Whether it is at least as likely as not that any current low back disability was caused by the Veteran's service-connected right knee or left hip disabilities. Please explain why or why not, specifically discussing any alterations in weight-bearing or gait caused by the Veteran's service-connected right knee and left hip disabilities. c. Whether it is at least as likely as not that any current low back disability was aggravated by the Veteran's service-connected right knee or left hip disabilities. Please explain why or why not, specifically discussing any alterations in weight-bearing or gait caused by the Veteran's service-connected right knee and left hip disabilities. d. Whether it is at least as likely as not that any current right hip disability, including arthritis, began in service, was caused by service, had its onset within one year of the Veteran's separation from active duty, or is otherwise related to the Veteran's active service. e. Whether it is at least as likely as not that any current right hip disability was caused by the Veteran's service-connected right knee or left hip disabilities. Please explain why or why not, specifically discussing any alterations in weight-bearing or gait caused by the Veteran's service-connected right knee and left hip disabilities. f. Whether it is at least as likely as not that any current right hip disability was aggravated by the Veteran's service-connected right knee or left hip disabilities. Please explain why or why not, specifically discussing any alterations in weight-bearing or gait caused by the Veteran's service-connected right knee and left hip disabilities. The term "aggravation" means a chronic worsening of a disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the lumbar spine disability and/or right hip disability prior to aggravation by the service-connected right knee or left hip disabilities. Each opinion expressed must be supported by a complete and coherent rationale. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App.268 (1998). 5. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Slabbekorn Jr, Ray 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