Citation Nr: 21005371 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-00 350 DATE: February 1, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Army from November 1973 to October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in September 2015; a transcript of that hearing is of record. In May 2018 and December 2019, the Board remanded the Veteran’s claim for further development. 1. Entitlement to service connection for a right hip disability is remanded. The Veteran contends that his right hip disability is causally related to his active military service, to include aggravation of his pre-existing Perthes disease due to rigorous physical activity during service. The record reflects that in January 1993 the Veteran reported a steady increase in pain and loss of range of motion over the past eight to 10 years and was diagnosed with endstage osteoarthritis secondary to Perthes disease. He underwent a right total hip replacement. Under the presumption of soundness doctrine, every veteran shall be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to acceptance and enrollment in service and was not aggravated by such service. See 38U.S.C. §§1110, 1111. The burden of rebutting the presumption of soundness has been allocated to VA, which must establish by clear and unmistakable evidence both that the condition at issue existed prior to service and that it was not aggravated by such service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003. Thus, the veteran need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness; rather VA must establish by clear and unmistakable evidence that the pre-existing disability was not aggravated during service or that any worsening of the disability was merely due to the natural progress of the disease. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Clear and unmistakable evidence requires that the evidence cannot be misinterpreted and misunderstood, that it is undebatable, which has been described as an onerous standard. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); Laposky v. Brown, 4 Vet. App. 331, 334 (1993). In December 2019, the Board remanded to obtain a VA opinion as to the nature and etiology of the Veteran’s right hip disability. An opinion was obtained in September 2020, but the Board finds that it is inadequate as it is did not provide all of the requested opinions, did not address the requested standard of proof, is internally inconsistent, and appears to refer to the knee and hip interchangeably. For example, the opinion states in part, “Since overuse of a joint is a significant cause of osteoarthritis, it is at least as likely as not that the Veteran would not have developed osteoarthritis with hip replacement if he were not active in military service.” but also states, “In other words, with or without military service, it is most likely that the Veteran would have developed osteoarthritis with total knee arthroplasty because those conditions are recognized by the scientific community as common complications of Perthe’s disease. Therefore, it is less likely that the Veteran’s right hip disability currently diagnosed as right hp osteoarthritis/status post total hip arthroplasty is incurred in or caused by the Veteran’s previously diagnosed Perthe’s disease.” Finally, as the Veteran is now service connected for a right knee disability, the Board finds that an opinion should also be obtained as to whether the Veteran’s right hip osteoarthritis was caused or aggravated by his right knee disability. The matters are REMANDED for the following action: Obtain a VA opinion as to the following: (a.) Whether the Veteran’s pre-existing Perthes disease is a congenital or developmental disease or defect. The terms “disease” and “defects” must be interpreted as being mutually exclusive. The term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term “defects” is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. 1. If Perthes disease is found to be a congenital or developmental defect, the examiner should opine as to whether such defect was subject to a superimposed disease or injury during service, to include as a result of rigorous physical activity during military service, that resulted in additional disability. If so, please identify the additional disability. 2. If Perthes disease is found to be a congenital or development disease, the examiner should opine: Whether there is clear and unmistakable evidence that the Veteran’s pre-existing Perthes disease did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there is evidence of an increase in severity of the Veteran’s Perthes disease, the examiner should opine whether such increase was clearly and unmistakably due to the natural progression of the disease. (Continued on the next page)   (b.) Finally, the examiner should opine whether it is at least as likely as not that the Veteran’s right hip osteoarthritis was caused or aggravated by his service-connected right knee injury residuals. The examiner must address all lay statements by the Veteran and include a full rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.