Citation Nr: 21008724 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-32 473 DATE: February 17, 2021 REMANDED Entitlement to a bilateral hip disability to include as secondary to service-connected lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from May 1983 to May 2004. The matter was previously before the Board. In a July 2019 decision, the Board denied the Veteran’s appeal for entitlement to service connection for lumbar spine and bilateral hip disabilities among other claims. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, pursuant to an April 2020 joint motion for partial remand (JMPR), the Court vacated and remanded the portion of the Board's July 2019 decision denying entitlement to lumbar spine and bilateral hip disabilities stating that the Board erred when it failed to ensure that VA complied with the duty to assist by obtaining adequate medical examinations. Accordingly, in October 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for actions consistent with the Court’s JMPR. The matter has been returned to the Board for further appellate review. During the pendency of this appeal, in a December 2020 rating decision, service connection for degenerative joint disease lumbar spine was granted with an evaluation of 10 percent effective April 17, 2015. In addition, separate ratings were also granted for left lower extremity, sciatic nerve and left lower extremity, femoral nerve, as secondary to the service connected degenerative joint disease lumbar spine. The Veteran has not in response, separately appealed either the ratings or effective dates assigned for his disabilities. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). As such, the service connection claim for degenerative joint disease lumbar spine is no longer on appeal to the Board. Entitlement to a bilateral hip disability to include as secondary to service-connected lumbar spine disability is remanded. The Veteran contends that he has a bilateral hip disability that is related to service to include as due to service-connected lumbar spine disability. The Veteran's VA medical records contain notes regarding the Veteran’s hip complaints. A March 2013 medical report indicated that muscle spasms were noted bilaterally in gluteals, piriformis, quadratus lumborum and para-spinal musculature. See March 2013 Medical Treatment Record - Non-Government Facility. In an independent medical examination conducted at the Walter Reed National Military Medical Center, the examiner noted a bilateral hip condition and stated that the Veteran “cannot move both legs backward more than 5 degrees, both hips forward flexion is less than 20 degrees”. See October 2016 Medical Treatment Record - Government Facility. The Veteran was afforded a VA Hip Conditions examination in November 2020. The examiner noted that the Veteran does not have a current diagnosis associated with any claimed condition. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was no objective evidence of a hip disorder on exam; therefore, a nexus to the back condition cannot be established nor could the back have aggravated the condition. See November 2020 C&P Examination. The Board finds that the November 2020 VA examiner, however, did not address the validity of the prior findings of a bilateral hip condition shown during this appeal. Importantly, service connection may be granted for a disability shown and resolved during the appeal period. See McClain, 21 Vet. App. at 321 (holding that the “current disability” requirement is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim” and reversing Board's denial of service connection where disability resolved itself during pendency of appeal). Given the above, remand for another medical opinion is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to address the nature and etiology of any bilateral hip disability as shown during this appeal (see the March 2013 Medical Treatment Record - Non-Government Facility and the October 2016 Medical Treatment Record - Government Facility). The examiner must opine on: (a) whether it is at least as likely as not (50 percent or greater probability) that any bilateral hip disability is related to service. (b) whether it is at least as likely as not (50 percent or greater probability) that any bilateral hip disability (or any functional impairment of either hip) is (1) proximately due to the service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by the service-connected lumbar spine disability. To the extent that the examiner concludes that the Veteran has not had any bilateral hip disability during or approximate to this appeal, the examiner must explain his/her conclusion and address in particular why the March 2013 Medical Treatment Record - Non-Government Facility and the October 2016 Medical Treatment Record - Government Facility findings are incorrect/invalid or otherwise not supported. A complete rationale requires consideration of the Veteran’s lay assertions and the medical evidence, including a November 2015 article of record, referencing the relationship between lower back pain and hip. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.