Citation Nr: 21011950 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-32 346A DATE: March 3, 2021 ORDER Entitlement to service connection for spondylosis L5-S1 is granted. Entitlement to service connection for a left hip condition is granted. REMANDED Entitlement to service connection for a left thigh condition is remanded. FINDING OF FACT The record evidence shows that Veteran’s back and left hip conditions are related to an injury which occurred while on active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition have been met. 38 U.S.C. §§ 1101, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The criteria for service connection for a left hip condition have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service in the U.S. Army from May to June 1970. In November 2018, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ obtain updated treatment records for the Veteran and schedule him for appropriate examinations to determine the nature and etiology of his claimed disabilities. Additional records subsequently were associated with the claims file. The requested examinations occurred in September 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). 1. Entitlement to service connection for spondylosis L5-S1 is granted. The Veteran contends that he fell when performing line of duty activities and injured his lower back and hip. First, the evidence shows a current disability. The Veteran has a diagnosis of spondylosis. Thus, the first element of service connection is satisfied. Shedden, 381 F.3d at 1166-67. Second, with regard to the in-service element, the Veteran reported in July 2019 that he fell off the “jungle gym/monkey bars” during an exercise and injured his lower back and hip. Here, the Board finds that the Veteran’s testimony regarding the in-service onset of his low back condition to be competent and credible. See Jandreau, 492 F.3d 1372, at 1377; 38 C.F.R. § 3.159(a). Furthermore, his testimony is consistent with his report of lower back pain at his separation examination. The Board affords the benefit of the doubt to the Veteran and find that he sustained an injury from a fall during service. Therefore, the second element of service connection also has been satisfied. Shedden, 381 F.3d at 1166-67. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed back condition and his in-service injury. In that regard, the Board finds that the preponderance of the evidence supports granting the claim. The Veteran was afforded a VA examination in September 2019. The examiner concluded the Veteran’s spondylosis was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner noted the Veteran was seen for x-rays in May 1970 and was seen several times for the same complaint. The same treatment records show the Veteran was hospitalized for a URI. The examiner reasoned that the Veteran’s service treatment records were silent for a back complaint in the days leading up to the imaging. See September 2019 VA examination. The examiner reasoned the Veteran's treatment records were silent for complaints of a back condition leading up to the imaging. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board notes that the September 2019 VA examiner did not comment on the significance of the Veteran’s separation examination which noted that his back pain was related to a fall in service. Thus, the Board finds the September 2019 VA examination inadequate as it failed to consider relevant medical evidence. The Veteran was afforded another VA examination in September 2020. The examiner concluded the Veteran’s spondylosis was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that post service records from private medical treatment and VA show chronic recurring back pain since the service. The Veteran’s current lumbar spine condition is related to the Veteran’s in-service fall along with the complaints of back pain on separation exam during military service. Thus, the final element of service connection is established. As all three elements for service connection have been met, the Board finds that service connection for spondylosis L5-S1 is granted. 2. Entitlement to service connection for a left hip condition is granted. The Veteran contends his left hip condition is related to an injury that occurred while on active duty. He alternatively contends that his back condition caused or aggravated (permanently worsened) his left hip condition. As noted above, the Board granted service connection for spondylosis L5-S1. First, the evidence shows a current disability. The Veteran was diagnosed with a left hip joint replacement. Thus, the first element of Shedden is met. Shedden, 381 F.3d at 1166-67. A review of the Veteran’s service treatment records does not reveal any complaints or diagnosis of a hip condition during his military service. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Veteran reported in July 2019 that he fell off the “jungle gym/monkey bars” during an exercise and injured his lower back and hip. Here, the Board finds that the lay statements regarding the in-service onset of a left hip condition to be competent and credible. See Jandreau, 492 F.3d 1372, at 1377; 38 C.F.R. § 3.159(a). The Board affords the Veteran the benefit of the doubt and finds that he sustained an injury from a fall during service. Therefore, the second element of service connection has been satisfied. Shedden, 381 F.3d at 1166-67. The remaining question is whether there is a medical nexus between the Veteran’s left hip condition and his in-service injury or his service-connected back condition. Regarding direct service connection, the Veteran was afforded a VA examination in September 2019. The examiner concluded the Veteran’s left hip condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner reasoned the Veteran’s service treatment records were silent for a left hip condition while in service. The Board observes the rationale provided by the September 2019 VA clinician violates Buchanan and Barr because it finds the lack of evidence to be persuasive support for a negative medical nexus opinion. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Thus, the Board finds that the September 2019 VA examination and opinion is not entitled to probative weight on the issue of whether the Veteran’s left hip condition is related to active service. See Wilson, 2 Vet. App. at 614. The Veteran was afforded another VA examination in September 2020. The examiner provided etiological opinions for both direct and secondary service connection for the Veteran’s left hip condition. Regarding direct service connection, the examiner found the Veteran’s left hip condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran’s post service records show chronic recurring left hip pain since service which was related to the fall during military service. The Veteran contends that he incurred a left hip condition during active service, including as a result of an in-service fall. The competent record evidence (September 2020 VA examination and opinion) supports his lay assertions regarding an etiological link between a left hip condition and active service. The September 2020 VA examiner’s opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for a left hip condition is warranted. See also 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND Entitlement to service connection for a left thigh condition is remanded. The Veteran finally contends that he incurred a left thigh condition during active service. The Board acknowledges that this claim has been remanded previously. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). In the November 2018 remand, the Board directed the examiner to provide a diagnosis for any left thigh condition that has existed during the pendency of the claim and an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s left thigh was caused by or aggravated by the Veteran’s spondylosis at L5-S1. The Veteran was afforded a VA examination in September 2019. The examiner found there was no diagnosis of a left thigh condition. The record evidence shows, however, the Veteran previously was diagnosed with chronic long-standing left thigh pain in approximately October 2018. As the record contains evidence of a diagnosis of chronic left thigh pain, the September 2019 VA examiner failed to consider this evidence in rendering an opinion. Thus, the Board finds that the September 2019 medical nexus opinion is inadequate for VA adjudication purposes and is not entitled to probative weight on the issue of whether the left thigh condition is related to active service. See Wilson, 2 Vet. App. at 614. The Veteran was afforded another VA examination in September 2020. The September 2020 examiner concluded the Veteran’s thigh condition was less likely than not due to or the result of the service-connected condition. The rationale for this opinion was that there was no evidence of any left thigh condition during service. When VA undertakes to provide a VA examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. 312. And opinions regarding secondary service connection must address both causation and aggravation. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Here, the September 2020 examiner did not provide an opinion regarding aggravation for the left thigh condition. Moreover, although this examiner concluded that the Veteran’s thigh condition was less likely than not due to or the result of his lower back condition, he relied on a lack of evidence of a thigh condition in service as support for his opinion. Thus, the Board finds that the September 2020 VA medical nexus opinion also is inadequate for VA adjudication purposes and is not entitled to probative weight on the issue of whether the Veteran’s left thigh condition is related to active service. See Wilson, 2 Vet. App. at 614. There is no other medical nexus opinion currently of record addressing the contended etiological relationship between the Veteran’s left thigh condition and active service. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the November 2018 remand instructions. Given this error, another remand is required. The AOJ also should obtain the Veteran’s updated treatment records. The matter is REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s updated treatment records. 2. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s left thigh condition. If possible, this opinion should be provided by a clinician other than the clinicians who provided the opinions dated on September 27, 2019, and on September 3, 2020. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to identify any left thigh condition(s) currently experienced by the Veteran. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left thigh condition, if diagnosed, is related directly to active service. The clinician also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s service-connected spondylosis L5-S1caused or aggravated (permanently worsened) a left thigh condition, if diagnosed. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. 3. Review the opinion, once obtained, to determine whether it substantially complies with this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco 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.