Citation Nr: 21009822 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-01 938 DATE: February 23, 2021 ORDER Service connection for a left hip disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The date of claim for the issue of service connection for a left hip disability was in January 2004. 2. The Veteran’s left hip disability is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left hip disability have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1989 to April 1997. In October 2014, April 2017, January 2018, and April 2019, the issues of entitlement to service connection for left hip and right knee disabilities were remanded for additional evidentiary development. There was substantial compliance with the remand directives for the issue on appeal discussed below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, outstanding VA treatment records dated from December 2011 to April 2018 and from August 2018 to December 2018 were obtained and associated with the claims file. The Agency of Original Jurisdiction (AOJ) obtained VA Disability Benefits Questionnaire (DBQ) examinations for hip and thigh conditions in December 2014 and April 2018, as well as additional VA medical opinions for the left hip disability in December 2013, April 2017, April 2018, and November 2019. The examination reports and medical opinions, collectively, were adequate because based on review of the record and conclusions were supported by well-reasoned rationales. The AOJ also readjudicated the issue in February 2015, September 2017, February 2019, and July 2020 supplemental statements of the case (SSOCs). The case has been returned ot the Board for appellate review. As explained in the October 2014 Board remand, these issues on appeal were initially denied by the AOJ in a December 2004 VA rating decision. Within one year of that decision, the Veteran reported in an October 2005 statement that he had moved and never received any notices from the AOJ. The Veteran reiterated this contention in a May 2009 correspondence. It was not until a February 2010 VA rating decision that the AOJ readjudicated these claims on appeal. in light of the Veteran’s October 2005 statement, the Board finds that the December 2004 VA rating decision is still on appeal and considers whether service connection is warranted for these issues on the merits. The Board acknowledges that in written briefs by the Veteran’s representative in January 2017 and November 2017, regulations regarding a secondary theory of entitlement were raised; however, were generic with no specific assertion as to the facts in this case. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist with regards to the issue discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for left hip disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In January 2004, VA received the Veteran’s formal claim of entitlement to service connection for a left hip condition. He noted onset of this disability in October 1993 and treatment from October 1993 to January 2004 at the US Army Aid Station at Fort Steward in Georgia. VA medical records reveal complaints of left hip pain during the claim period. See, e.g., October 2009 VA treatment record. Moreover, the Veteran has reported that he experiences left hip pain with prolonged walking or standing, he takes Motrin to treat it, and his recent employment history consists of light manual labor. See December 2014 and April 2018 VA examination reports. Resolving reasonable doubt in favor of the Veteran, the Board finds that his left hip pain results in the functional impairment of earning capacity and, therefore, is considered a disability for VA purposes. 38 U.S.C. § 5107(b); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Review of the Veteran’s service treatment records, to include examinations and reports of medical history, document notations in October 1993, November 1993, and October 1998 of left hip contusion, crepitus, and pain after a fall while playing football. As a result, the element of an in-service occurrence has been met in this case. Lastly, the Veteran contends that his left hip disability was incurred in service and has continued. Specifically, he reported on the January 2004 VA Form 21-526 that his hip condition began in October 1993 and received treatment until January 2004. In a June 2009 VA Form 21-4138, he reported that being unable to stand for long periods without feeling pain in his hip. Additionally, since separation from active service, review of private treatment records documents the Veteran underwent physical therapy for hip pain from 2001 to 2003, to include a possible diagnosis of hip arthralgia in June 2003. Additionally, review of VA treatment records documents the Veteran’s report of left hip pain, as noted in October 2009. VA medical opinions concerning a nexus between the left hip disability and active service were rendered in December 2009, December 2014, April 2017, and April 2018. While these opinions weighed against a nexus, the Board has previously found them to be inadequate. Therefore, they are afforded no probative value. In November 2019, another VA medical opinion was rendered that weighed against a nexus. Among other things, the examiner relied on the fact that the Veteran’s left hip disability had resolved, and the examiner also noted that private medical records showing treatment for left hip pain during the period between 1998 and 2001 were unable to be located. The examiner noted that the first post-service treatment of left hip pain did not occur until 2003 and, given that this occurred seven years after discharge from service, it was less likely than not related to the in-service incurrence. The Board notes that the November 2019 VA opinion is based on an inaccurate factual premise as the record does contain private treatment records showing treatment for left hip pain as early as 2001. Moreover, the Board finds the Veteran competent and credible as to his descriptions of experiencing left hip pain since his in-service incurrence, notwithstanding gaps in treatment for that pain. Resolving reasonable doubt in the Veteran’s favor, the Board finds that his left his disability is related to his active service. 38 U.S.C. § 5107(b). Service connection for a left hip disability is granted. REASONS FOR REMAND Entitlement to service connection for a right knee disability In compliance with the most recent Board remand in April 2019, the Veteran was afforded an additional VA medical opinion in November 2019 for the service connection claim on appeal for a right knee disability. While the VA examiner noted review of the claims file, the medical opinion provided failed to specifically consider and address the October 2009 VA treatment record for right knee pain and assessment of “mild osteoarthritis of both knees secondary to old injuries.” As noted in the January 2018 and April 2019 Board remands, the VA examiner was specifically requested to consider and address this October 2009 VA treatment record. The Veteran is entitled to substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Board emphasizes that it is not determining whether or not the Veteran’s assertion of right knee pain since service is credible at this time, as the additional development set forth in the directives below could impact that determination. The matter is REMANDED for the following actions: 1. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding the Veteran’s right knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran’s lay assertion of right knee pain during and since service is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: Review of service treatment records shows notations of right knee contusion, crepitus, swelling, tenderness, and pain, as well as participation in physical therapy from October 1993 to April 1994. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s mild osteoarthritis in the right knee (noted in October 2009 VA treatment record, even if since resolved) (a) began during active service, (b) is related to an incident of service, or (c) began within one year after discharge from active service, to include consideration of the Veteran’s lay assertions of onset for right knee pain during service and continuous thereafter. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. Mike Sobiecki Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.