Citation Nr: 21010599 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-16 773 DATE: February 25, 2021 REMANDED Entitlement to service connection for a right hip disorder, to include as secondary to degenerative disc disease of the thoracolumbar spine and/or thoracic myelopathy of the bilateral lower extremities, is remanded. Entitlement to service connection for a left hip disorder, to include as secondary to degenerative disc disease of the thoracolumbar spine and/or thoracic myelopathy of the bilateral lower extremities, is remanded. Entitlement to automobile and adaptive equipment or adaptive equipment only is remanded. REASONS FOR REMAND The Veteran had active service from January 1995 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) from May 2011 and March 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in February 2016. A transcript is of record. This claim was previously before the Board in July 2017 and July 2019, at which time the Board remanded it for additional development. Additional development is needed before the claims can be decided on the merits. 1. Entitlement to service connection for a right hip disorder, to include as secondary to degenerative disc disease of the thoracolumbar spine and/or thoracic myelopathy of the bilateral lower extremities, is remanded. 2. Entitlement to service connection for a left hip disorder, to include as secondary to degenerative disc disease of the thoracolumbar spine and/or thoracic myelopathy of the bilateral lower extremities, is remanded. In July 2019, the Board remanded the claim in order for the Veteran to be scheduled for a VA examination. The examiner was to identify the currently diagnosed hip disorders, and to offer opinions on whether there is clear and unmistakable evidence that the hip disorders existed prior to service, and if so whether there is clear and unmistakable evidence that the hip disability was not aggravated beyond its natural course during service. If the hip disabilities did not exist prior to service, the examiner was to provide an opinion on whether it is at least as likely as not that it was related to service. Finally, the examiner was to provide an opinion as to whether it is at least as likely as not that the right or left hip disorders were caused or aggravated by the service-connected degenerative disc disease of the lumbar spine and/or thoracic myelopathy of the lower extremities. The examiner was to address the April 1995 VA treatment record that the right total hip replacement was due to Charcot arthritis and the report from November 2015 VA treatment that the Veteran had slipped capital femoral epiphysis (SCFE) as a child. The Veteran had a VA examination in November 2019 at which he was diagnosed with bilateral total hip replacement, status post degenerative joint disease of the hips, and status post pinning of the right femur. He reported that hip pain began seven years before. The Veteran underwent a right hip replacement in 2011 and a left hip replacement in 2015. The examiner opined that it was less likely than not that the bilateral hip disability was proximately due to or the result of the Veteran’s service-connected back disability. It was unlikely that the back condition would cause the condition in the hips based on the given history, physical examination, and review of the file. In September 2020 a VA examiner reviewed the record and opined that there is not clear and unmistakable evidence that the hip condition existed prior to service. It was noted that there are two different, contradictory hip diagnoses, an intertrochanteric fracture and Charcot arthritis. The examiner noted that a right fracture with pinning was noted by history at January 2009 VA treatment, while the Veteran reported a history of right Charcot arthritis at April 2015 VA treatment. The latter diagnosis was not supported by reports from clinicians. The examiner noted that Charcot hip arthritis results from a specific combination of events. Most notably is a loss of sensory function to the affected joint. This would not be seen in a case of degenerative disc disease, as noted in the records. Charcot hip arthritis has been reported in patients with spinal cord injuries, although it is not common. The examiner noted that it was unclear if the Veteran ever had had SCFE requiring pinning for a fracture sustained at the time of the post-service motor vehicle accident that resulted in the spinal cord injury. There was a lack of reference in the treatment records from outside sources describing a history of SCFE. The examiner also questioned whether SCFE at age 16 would have sufficiently healed to allow the Veteran to get through basic training, but not enough for the pins to be removed. The examiner further wrote that the bilateral hip disability was not related to, a result of, or aggravated by service. The rationale was that the service-connected degenerative disc disease of the lumbar spine would not in and of itself result in a sufficiently altered gait to cause degenerative joint disease. The spinal cord injury that was not related to service would potentially be a contributing factor. However, that is not related to his service. The November 2019 VA examiner did not provide diagnoses for the disabilities for both hips at the time of the total hip replacements. The September 2020 examiner’s report does not include an opinion regarding whether the left hip disability clearly and unmistakably existed prior to service. Such opinion was requested in the Board’s July 2019 remand instructions and must be obtained before the claim can be decided on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Compliance by the Board or the RO with remand instructions is neither optional nor discretionary). Furthermore, new opinions should be obtained regarding service connection on a direct and secondary basis because the September 2020 opinion does not contain a complete rationale. The Veteran must be scheduled for a new examination before the claim can be decided on the merits. VA treatment records to February 2021 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from February 2021 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to automobile and adaptive equipment or adaptive equipment only is remanded. The resolution of the claims for service connection for right and left hip disorders may impact whether the Veteran satisfies the requirements for automobile and adaptive equipment or adaptive equipment only. As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran’s automobile and adaptive equipment or adaptive equipment only claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Obtain VA treatment records from February 2021 to the present. 2. Provide the Veteran with a VA examination regarding his service connection claim for right and left hip disorders. The Veteran’s claims folder should be provided to the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. The examiner is advised that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. First, the examiner must identify all currently diagnosed right and left hip disorders, including the diagnoses at the time of the 2011 right total hip replacement and 2015 left total hip replacement. The examiner must then provide an opinion as to the following questions for each identified disorder: a) Whether there is clear and unmistakable evidence that a hip condition existed prior to service. Separate opinions should be provided for the right and left hips. The examiner should note that “clear and unmistakable evidence” means that the evidence cannot be misinterpreted and misunderstood, i.e. is undebatable. If there is clear and unmistakable evidence that a right or left hip condition pre-existed service, the examiner is asked to opine as to whether there is also clear and unmistakable evidence that the pre-existing right or left hip condition was NOT aggravated, (i.e. permanently worsened beyond its natural progression), during service. Separate opinions should be provided for the right and left hips, if applicable. b) If the examiner determines that a right or left hip disorder did not exist prior to service, please provide an opinion as to whether it is at least as likely as not that the Veteran’s current right and/or left hip disabilities (which did not pre-exist service) were incurred in service, within a year of service, or are otherwise related to his service. c) If a right or left hip disorder did pre-exist service and was aggravated in service, please provide an opinion as to whether any current right or left hip disability is at least as likely as not related to the aggravation of the right or left hip in service. The Veteran is also seeking service connection for his right and left hip disorders on a secondary basis. d) If the examiner determines that the Veteran's hip disorders are NOT related to his active service, please provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified right and/or left hip disorder was caused by the Veteran's service-connected degenerative disc disease of the lumbar spine and/or thoracic myelopathy of the bilateral lower extremities. e) If the answer to above to question d) is no, please provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified right and/or left hip disorder was aggravated (chronic or permanent worsening of the underlying condition above and beyond its natural progression) by the Veteran’s service-connected degenerative disc disease of the lumbar spine and/or thoracic myelopathy of the bilateral lower extremities. Regardless of the conclusion reached, the examiner should address the following: (1) the statement from the April 2015 VA treatment record that the Veteran’s right total hip replacement was due to Charcot arthritis; and (2) the report from the November 2015 VA treatment record that the Veteran had slipped capital femoral epiphysis (SCFE) as a child. All opinions should be complete and contain a thorough rationale. 3. All notice letters and contact with the Veteran regarding the scheduling of the examination should be included in the file. 4. The agency or original jurisdiction (AOJ) should review the medical report/opinion for compliance with these remand directives. If the medical opinion/report is in error, the AOJ should take corrective action before returning the appeal to the Board. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.