Citation Nr: 21007851 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-13 282 DATE: February 10, 2021 REMANDED Service connection for a right leg condition is remanded. Service connection for a left leg condition is remanded Service connection for a right hip condition is remanded. Service connection for a left hip condition is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 to May 1971. The Veteran provided testimony at a December 2020 Board hearing before the undersigned Veterans Law Judge (VLJ). A complete transcript is of record. This appeal was previously before the Board in November 2017. That decision granted the Veteran’s service connection claim for a cervical spine disability. The Veteran’s service connection claims for a bilateral leg condition and a bilateral hip condition were remanded for further development. The Board acknowledged a November 2010 statement, where the Veteran reported that he was having problems in his legs and hips because of his back. The Board remanded to afford the Veteran VA examinations to determine the etiology of his leg and hip conditions. The Veteran was afforded VA examinations for his legs and hips in May 2018. An addendum opinion was sought in September 2019. See Medical Opinion dated September 11, 2019. The regional office (RO) noted that the May 2018 examiner did not indicate that a previous etiology opinion, as to the Veteran’s low back, was made in error. The Veteran was afforded new VA examinations for his legs and hips in December 2019 and the examiner provided nexus opinions, as requested by the November 2017 Board remand directives. As such, the Board finds that there has been substantial compliance with the November 2017 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for a bilateral leg condition is remanded. Service connection for a bilateral hip condition is remanded. The Veteran asserts that his bilateral leg and hip conditions are due to his active duty service. Specifically, the Veteran asserts that his automobile accident in February 1971 caused trauma to his lower extremities. After a careful review of the Veteran’s service treatment records (STRs), they are silent for any complaints of leg or hip conditions. For example, his separation examination showed a normal clinical evaluation of his legs and hips. He did not report leg or hip problems. Further, the STRs, as they relate to the 1971 automobile accident, do not show complaints of leg or hip pain or diagnoses for any leg or hip conditions. The Veteran was afforded a VA examination for his legs and hips in May 2018. The examiner provided a positive nexus opinion as to secondary service connection for the legs and hips. However, the examiner found that the Veteran’s lower extremity complaints were secondary to his low back condition, and not his cervical spine disability. The Board notes that the Veteran is not service-connected for a low back condition. The examiner explained that the degree of disease documented in the 1991 MRI seemed excessive for the natural progression for a typical 41-year old. The examiner noted that the Veteran was involved in a September 1991 automobile accident, but was minor because none of the parties required hospitalization, and both parties were able to drive away from the accident. The examiner also noted that the Veteran was wearing a seat belt during the September 1991 accident. The examiner stated that for lack of other documentation to the contrary, his in-service automobile accident remains a distinct possibility as a contributing factor to his current low back, leg, and hip conditions. The examiner acknowledged a 2001 positive nexus opinion from a VA examiner, but also noted that the 2001 examiner did not provide an explanation for their positive nexus opinion. The examiner did provide a negative nexus regarding the knees; the examiner explained that the Veteran did not have current complaints of knee pain, and there was not any evidence in the STRs that he experienced knee problems in service. The Board notes that a January 2002 rating decision granted the Veteran’s service connection claim for a lumbar spine disability. However, a subsequent February 2004 rating decision found that clear and unmistakable error was made and severed service connection. The rating decision explained that the 2001 VA examiner was not able to review the Veteran’s claims file at the time of the examination. A subsequent March 2003 VA examiner was able to review the Veteran’s claims file and provided a negative nexus opinion based on there being no mention of low back problems at the time of the 1971 automobile accident. The RO noted that the Veteran was involved in a 1989 automobile accident and that a subsequent MRI revealed spinal stenosis in the lumbar spine. The March 2003 VA examiner found that it was more likely than not that the Veteran’s low back problems were caused by the 1989 accident. The Board has reviewed the Veteran’s post-service medical records and notes an April 1992 letter from the Veteran’s treating chiropractor. The chiropractor noted that they had treated the Veteran both before and after the 1989 accident. The chiropractor indicated that after the 1989 accident, the Veteran complained of lower back, hip, and leg pain. However, prior to the accident, the Veteran was being treated for hip and leg pain, which would result from over exertion or sports activities. The chiropractor stated that significant objective and subjective findings indicated that the Veteran did not have low back pain, prior to the 1989 accident. Here, the Board is satisfied that the prior denial of the Veteran’s service connection claim for a low back disability was proper. The RO requested an addendum opinion and noted that the May 2018 examiner did not indicate that a previous etiology opinion, as to the Veteran’s low back, was made in error; and the RO requested an addendum opinion to specifically address the Board’s November 2017 remand directives. The Veteran was afforded a VA examination in December 2019. After an in-person examination and a review of the Veteran’s claims file, the examiner provided negative nexus opinions as to both the bilateral leg condition and the bilateral hip condition. Regarding both the legs and the hips, the examiner explained that the Veteran’s service-connected cervical spine disability would not have caused his hip or leg problems because the neck and the hips/legs are not connected physiologically and the disc herniation and stenosis is not impacting any function below the neck, as shown by a normal neurological examination. Further, any functional impairment and loss of range of motion in the neck, would not impact the hips or the legs. The Veteran provided testimony at a December 2020 Board hearing. The Veteran described the 1971 automobile accident he was involved in. He testified that the accident was very traumatic, as he went through the windshield. He testified that he sustained injuries to his face and clavicle. The Veteran credibly testified that he did not experience any problems with his legs until 1978 or 1979, about 8 years after his separation from the military. He stated that he had an MRI around that same time, which showed herniated discs, but reported that he did not have those records. He also acknowledged the post-service automobile accident in 1989, but explained that the accident was minimal, in that he rear-ended the car in front of him, going about 25 miles per hour. He testified that the insurance company wanted him to get an MRI, but he did not see the point because the accident was not severe, and he already had back problems. The Veteran’s representative asserted that the Veteran was entitled to service connection for the legs and hips based on a continuity of symptomatology. Here, the Board finds that the Veteran has not established a continuity of symptomatology, in regard to the legs or the hips. The Veteran’s STRs do not document any complaints of leg or hip pain during his active duty service. Further, the Veteran testified that the onset of leg/hip pain was in 1978 or 1979, which is about 8 years after his separation from the military. As such, the Board finds that any potential continuity was severed, based on his testimony that the onset of leg and hip symptoms was many years after his separation from the military. However, the Board does find that remand is necessary to afford the Veteran a new VA examination to determine whether the 1971 in-service automobile accident caused the Veteran’s current condition in his lower extremities. The Board acknowledges that the May 2018 VA examiner has attributed the Veteran’s current complaints in his lower extremities, to his low back condition. However, the contemporaneous evidence of record does not indicate such. For example, the Veteran’s treating chiropractor noted that they treated the Veteran both prior to and after the 1989 accident. The chiropractor noted that prior to the 1989 accident, they treated him for leg and hip pain and he only complained of low back pain after the accident. Although the May 2018 VA examiner has attributed the Veteran’s lower extremity conditions to his non-service-connected low back disability; the Board affords the Veteran’s treating chiropractor more probative weight because they treated the Veteran over many years and at the time of the post-service accident; and thus had a very good understanding of the Veteran’s complaints. The Board notes that the Veteran’s representative requested a new VA examination to address the theory of direct service connection; whether the trauma from the in-service automobile accident could have caused the Veteran’s current conditions in his legs and hips. The November 2017 Board remand only sought nexus opinions regarding secondary service connection. Here, the Board finds that the report by the treating chiropractor that the Veteran was being treated for pain in his legs and hips, prior to the 1989 accident, in conjunction with the May 2018 VA examiner’s report that his in-service automobile accident remains a distinct possibility as a contributing factor to his leg and hip conditions, warrants a remand to afford the Veteran an examination to obtain an etiology opinion as to direct service connection. The matters are REMANDED for the following action: Obtain a medical opinion regarding the etiology of the Veteran’s bilateral hip and leg condition on a direct service connection basis. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. The examiner should answer the following question: Is it at least as likely as not (i.e. a 50 percent probability or more) that any diagnosed lower extremity conditions (hip or leg) were caused by the 1971 in-service automobile accident? Why or why not? The examiner should consider and discuss the April 1992 letter from the Veteran’s treating chiropractor, in which he noted that prior to the post-service 1989 accident, he had treated the Veteran for leg and hip pain and he only complained of low back pain after the 1989 accident. See Medical Treatment Record – Non-Government Facility received December 19, 2000. The Veteran’s December 2020 testimony at his Board hearing should also be considered MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.