Citation Nr: 21008930 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 11-09 094 DATE: February 18, 2021 REMANDED 1. Entitlement to service connection for right hip degenerative joint disease (DJD) is remanded. 2. Entitlement to service connection for lumbar degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1958 to February 1962. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the March 2011 VA form 9, Substantive Appeal, the Veteran requested a Travel Board hearing. The Veteran was scheduled for several Travel Board hearings, but requested rescheduling each time. The Veteran was last scheduled for a Travel Board hearing on August 21, 2017, but the Veteran did not appear, provide good cause for his absence, or file a timely motion for a new hearing date. The Veteran’s hearing request is deemed as withdrawn. 38 C.F.R. § 20.603(d). The undersigned Veterans Law Judge has been assigned to consider this appeal pursuant to 38 C.F.R. § 20.106(a). The Board remanded the claim on appeal in November 2017. In October 2019, the Board denied the claim, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand. In a June 2020 Order, the Court granted the Motion and remanded the case to the Board. These matters have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. 1. Entitlement to service connection for right hip degenerative joint disease (DJD) is remanded. In their June 2020 Joint Motion, the parties to the Motion determined that the Board’s decision should be vacated and the claim remanded in order for the Board to either obtain another medical opinion or explain, with an adequate statement of reasons or bases, how the February 2018 examination report substantially complies with its remand instructions. Additionally, the Board was instructed to reevaluate the Veteran’s reports of continuous hip pain since service and provide adequate reasons or bases for its credibility determination. Providing greater detail, pursuant to the November 2017 Board remand, the Veteran was afforded a VA examination in an attempt to reconcile a February 2010 VA opinion finding no link between the Veteran’s currently diagnosed right hip degenerative joint disease (DJD) and his incident or injury in service noting a diagnosis of chronic synovitis of the right hip, in December 1961. The February 2018 VA examiner determined that the Veteran’s current diagnosis of right hip degenerative joint disease was less likely than not incurred in or caused by service. The examiner rationalized his opinion by noting that during service “condition was acute only.” He further noted that there is no evidence of chronicity of care; thus, a nexus has not been established. In the October 2019 Board decision, when discussing whether the February 2018 examination report complied with the November 2017 Board remand, the Board stated: On the issue of whether the Veteran’s current right hip disability was related to the December 1961 diagnosis of right hip synovitis, the examiner found that the Veteran’s in-service diagnosis of right hip synovitis was acute only and lacking in chronicity of care. As argued in the June 2020 Joint Motion, it is unclear whether the examiner was indicating the in-service synovitis was “acute only” despite being described as chronic in service, or whether she was unaware that the Veteran had been diagnosed with “chronic synovitis” in service. A VA medical examination or opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), “describes the disability... in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one,’” id. (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). An examination report must be based on the correct facts to be adequate. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). The February 2018 right-hip opinion failed to adequately address the Board’s remand directive seeking to reconcile the negative nexus opinion with the in-service diagnosis. In order to address the concerns raised in the June 2020 Joint Motion, the Board finds a remand is warranted to obtain a new VA opinion. 2. Entitlement to service connection for lumbar degenerative disc disease (DDD) is remanded. Concerning the Veteran’s lumbar DDD, the Board observes that in the June 2020 joint motion, the parties noted that the decision on appeal erred when it said that a “July 1979 examination report is clear that [Appellant’s] degenerative disc disease of the lumbar spine was attributed to the lumbar trauma he experienced from the July 1974 injury.” The decision on appeal appears to have been referring to a June 29, 1979, “short stay record/interval note” from St. Mary’s Hospital and Medical Center, which diagnosed Appellant with “right sciatica secondary to lumbosacral degenerative disc disease aggravated by trauma.” The parties argue that the Board failed to address the possibility that the word “aggravated” indicated the Veteran may have injured his back at some point before 1974. The Board finds that in addition to the above, a new opinion is warranted. Pursuant to the November 2017 Board remand, the Veteran was afforded a VA Back Conditions Disability Benefits Questionnaire (DBQ) in February 2018. The examiner diagnosed degenerative arthritis of the spine, and opined that the Veteran’s current diagnosis is less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale explained that though there were complaints of low back pain in service, there was no actual injury or cause of the back pain noted during service. On the other hand, the examiner noted that there are medical records indicating a work-place injury in 1974, post service. In summation, the examiner concluded that there is no noted cause for the Veteran’s back pain in service, and from 1962 to 1974 there is no documentation of care; thus, he concluded there is no evidence of chronic or continuous care for a back condition from service. The Board finds this opinion to be inadequate because the examiner based his negative nexus opinion upon an inaccurate factual basis. The examiner found that there was no injury or cause of back pain noted in service, when in fact the December 1961 separation examination noted a diagnosis of recurrent/chronic lumbosacral strain, and a June 1959 clinical report notes recurrent back pain during basic training. These records reveal a diagnosis or cause of the Veteran’s recurrent back pain, and implies that an injury was potentially caused by basic training activities. Accordingly, as the opinion is based on an inaccurate factual basis, the February 2018 VA medical opinion is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Accordingly, another VA medical opinion should be obtained to properly decide the merits of the claim. The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s right hip condition. If an examination is deemed necessary, then schedule the Veteran for one. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. If an examination is deemed necessary, any indicated tests and studies are to be conducted. The examiner should address the following: Is at least as likely as not (50 percent or greater probability) that a right hip disability was incurred during service or is related to any event or injury during service? If the examiner determines that no in-service injury occurred, the examiner must explain the apparent discrepancy between his/her conclusion and earlier findings in the record, specifically the December 1961 treatment note which records a diagnosis of chronic right hip synovitis. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s lumbar DDD condition. If an examination is deemed necessary, then schedule the Veteran for one. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. If an examination is deemed necessary, any indicated tests and studies are to be conducted. The examiner should address the following: Is it at least as likely as not (50 percent or greater probability) that a current low back disability was incurred during service or is related to any event or injury during service? The examiner is asked to address the Veteran’s in-service diagnosis of chronic lumbosacral region strain. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.