Citation Nr: 21007963 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-31 087 DATE: February 11, 2021 REMANDED Entitlement to service connection for bilateral hip disabilities, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service from July 1993 to July 1997. These matters come before the Board of Veterans’ Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were most recently before the Board in April 2019 when the Board denied these claims. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court vacated the Board’s decision denying these claims and remanded them to the Board for further action consistent with a Joint Motion for Remand (JMR). 1. Entitlement to service connection for bilateral hip disabilities, to include as secondary to service-connected disabilities, is remanded. In a September 2020 JMR, the parties pointed out that the Board denied service connection for the Veteran’s bilateral hip disabilities based on the lack of evidence showing current disabilities. The parties agreed that the Board did not address evidence showing the Veteran had tendonitis of the hips. The parties also found that the Board did not consider all of the evidence when determining that the Veteran’s lay statements regarding the functional impact of his painful joints were not credible. Specifically, the Board found that the Veteran’s statements were not credible, in part, because the Veteran had not lost time from work due to his hips. However, the December 2007 Gulf War examination report shows the Veteran reported having missed 60 days of work due to hip pain. Based on the findings in the JMR, a remand is necessary to schedule an examination to determine whether the Veteran has had a disability of either hip at any time during the pendency of the claim, to include symptoms resulting in functional impairment of earning capacity. For all disabilities of the right and left hip, opinions must be obtained indicating whether the Veteran’s disabilities are due to service or caused or aggravated by his service-connected bilateral knee and foot disabilities. The Court held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, the VA examiner must provide separate findings and rationales relating to causation and aggravation. 2. Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities, is remanded. In the September 2020 JMR, the parties found that the Board denied service connection for the Veteran’s back disability based on an inadequate opinion from the November 2016 VA examiner. Specifically, opinions were not obtained to determine whether falls due to the Veteran’s service-connected left knee disability either aggravated the Veteran’s degenerative disc disease or caused or aggravated a different back disability. On remand, an examination must be scheduled to determine whether any back disability is due to or has been aggravated by his service-connected bilateral knee and foot disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2018 to present. 2. Schedule the Veteran for a VA examination for his bilateral hip disabilities. The examiner must be provided access to the electronic claims file for review in connection with the examination. If a diagnosis of either hip cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment in earning capacity, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. For each disability of the right and left hip, the examiner is asked to provide a response to the following: (a) Is the hip disability at least as likely as not (50 percent or greater probability) related to service? (b) Is the hip disability at least as likely as not proximately due to the service-connected bilateral knee and/or foot disabilities? (c) Is the hip disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected bilateral knee and/or foot disabilities? The aggravation need not be permanent. If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. The examiner must provide a rationale to support the opinions. For secondary service connection, causation and aggravation are independent concepts and should have separate findings and rationales. In providing the requested opinions, the examiner must consider the Veteran’s lay statements addressing the onset and severity of his bilateral hip disabilities. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability or disabilities, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a VA examination for his back disability. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. For each disability of the back, the examiner is asked to provide a response to the following: (a) Is the back disability at least as likely as not (50 percent or greater probability) proximately due to the service-connected bilateral knee and/or foot disabilities? The examiner must specifically address the falls attributed to the left knee disability and whether the falls caused a back disability. (b) Is the back disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected bilateral knee and/or foot disabilities? The aggravation need not be permanent. The examiner must specifically address the falls attributed to the left knee disability and whether the falls aggravated a back disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. The examiner must provide a rationale to support the opinions. For secondary service connection, causation and aggravation are independent concepts and should have separate findings and rationales. In providing the requested opinions, the examiner must consider the Veteran’s lay statements addressing the onset and severity of his back disability. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability or disabilities, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman 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.