Citation Nr: 21077213
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 16-08 582
DATE: December 29, 2021

REMANDED

Entitlement to service connection for left hip condition, to include as secondary to service-connected conditions, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Navy from November 1983 to November 2003.

In July 2021, the Board of Veterans' Appeals (Board) remanded this issue for further development, including obtaining a medical opinion pertaining to his claim.

The Board finds that the claim must be remanded for a new VA examination.  The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim.

The Veteran contends that his left hip condition is related to service, or in the alternative, is secondary to his service-connected right hip, bilateral knee, and bilateral pes planus conditions.  

A medical opinion provided by a VA physician from a review of available records using the Acceptable Clinical Evidence (ACE) process was associated with the Veteran's claims file in August 2021.  She opined that the Veteran's left hip condition was less likely than not related to or aggravated beyond its natural progression by his service-connected conditions.  However, the VA physician used the incorrect definition for her aggravation opinion for secondary service connection.  Per a recent decision from the United States Court of Appeals for Veterans Claims, permanent worsening need not be shown.  Any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, regardless of its permanence, constitutes aggravation.  Ward-Neal v. Wilkie, 31 Vet. App. 233 (2019).  As such, remand for a new examination is warranted to adequately address the nature and etiology of the Veteran's left hip condition.

The matters are REMANDED for the following action:

1. With the Veteran's assistance as appropriate, associated with the Veteran's claims file any outstanding relevant treatment records. 

2. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's left hip condition.  The claims file should be made available to the examiner for review in connection with the examination.  

Based on review of the record and examination of the Veteran, the examiner should respond to the following:

(a.) Obtain a detailed history of the Veteran's left hip condition, to include any and all symptomology. 

(b.) State whether it is at least as likely as not that the Veteran's left hip condition had its onset in or is related to service, to include due to wear and tear during service.

(c.) State whether it is at least as likely as not that the Veteran's left hip condition was i) caused or ii) aggravated by his service-connected right hip, bilateral knee, and/or bilateral pes planus conditions.  An opinion must be given for both causation and aggravation.  

(d.) If the examiner finds that the Veteran's left hip condition was aggravated by a service-connected disability, then he/she should specify the baseline level of disability of the left hip condition prior to aggravation due to the service-connected condition.  Note that aggravation means any incremental increase in disability in the non-service-connected condition (i.e., any additional impairment of earning capacity) resulting from the service-connected condition(s).  

The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, or cannot provide an opinion without resorting to speculation, he or she must explain why.

 

 

Mary E. Rude

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. L. Park, 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.