Citation Nr: 21014767 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-02 626 DATE: March 15, 2021 REMANDED Entitlement to service connection for left hip condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1971 to May 1974, with additional service in the Navy Reserves from October 1984 to December 2005. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Board remanded the issue in May 2019 and it has since returned to the Board for adjudication. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s 2019 remand directed the RO to associate with the claims file the Veteran’s military personnel records, rating decisions, and examinations, and any outstanding VA and private treatment records. The RO’s original rating decision is found in the April 2013 Rating Decision Codesheet. Rating Codesheet, 4/6/2013. A copy of the Veteran’s April 20, 2013 Notice of Disagreement is now associated with the file as well. Statement in Support of Claim, 11/27/2019. A copy of the Veteran’s June 6, 2013 Decision Review Officer (DRO) election form has been submitted, as well as his contentions related to that appeal. Election DRO Process,11/27/2019; Correspondence, 11/27/2019. Service treatment records concerning the Veteran’s 1973 active duty injury to the right leg were uploaded to the claims file, as well as available records related from his reserve duty and 2004 hip injury. STRs, 11/8/2019; MTR-Gov, 11/27/2019; DPRIS, 5/1/2020. The Veteran has submitted information release forms and pertinent personnel and private treatment records that are now included in the claims file. MTR- Non-Gov, 2/7/2017 ; Correspondence, 1/22/2019 ; MTR- Non-Gov, 9/28/2020; MTR- Non-Gov, 10/6/2020. As such, the Board finds there has been substantial compliance with its remand directives to develop the record and obtain missing documents. Id. at 271. Unfortunately, however, remand is necessary to address deficiencies in the medical opinions obtained and to further develop the Veteran’s claim, as discussed below. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When a claim for service connection is based on a period of active duty training (ACDUTRA), there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” by virtue of ACDUTRA service alone. Id. See also 38 U.S.C. § 101 (2), (24); 38 C.F.R. §§ 3.1 (d), 3.6(c). When a claim for service connection is based on a period of inactive duty for training (INACDUTRA), there must be some evidence that the appellant became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during the period of INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” by virtue of INACDUTRA service alone. Id. See also 38 U.S.C. § 101 (2), (24); 38 C.F.R. §§ 3.1 (d), 3.6(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by, or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for left hip condition is remanded. The Veteran contends he is entitled to service connection for his left hip disability. By way of history, the Veteran underwent bone graft surgery on his left hip iliac crest while on active duty in 1973 to repair his fractured right tibia. The injury to the right leg has caused a length discrepancy, with the right leg shorter than left, such that an altered gait has existed since. He asserts he has had increasing left hip pain for many years due to his altered gait and for compensating for his right leg weakness. He also contends his hip condition is the result of a fall injury sustained during physical fitness testing while serving in the Navy Reserves. He has submitted lay statements from a witness and servicemember attesting to the hip injury occurring in May 2004. See Correspondence, 2/3/2021. The Veteran contends he has not been given an examination for his left hip disability and instead his existing right leg, knee, and ankle have been examined multiple times. See Correspondence, 2/3/2021. He reports daily pain, limited range of motion, and muscle strength loss for his left hip. Until 2015, he worked as a U.S. Postal carrier which required long periods of standing, causing his hip to become painful. He is currently service-connected for residuals of fracture, right tibia (DC 5262) and degenerative changes, right ankle (DC 5271) as a secondary condition. Based on these contentions, theories of entitlement to service connection on a direct and a secondary basis have been raised. The Board must explore both. The record shows the Veteran was provided an in-person VA examination in January 2013, and an addendum opinion was provided by an examiner in December 2020. However, the Board concludes both medical opinions are inadequate and the claim cannot be adjudicated on the merits at this time. The January 2013 examiner concluded the Veteran’s hip condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. VA Examination, 1/17/2013, pg. 6/68. They concluded a review of the orthopedic literature failed to find that a condition of one joint is an etiologic factor in the development of a condition in another joint. The examiner concluded the Veteran’s hip condition was more likely due to aging, musculoskeletal deconditioning, and a genetic predisposition to developing conditions in weightbearing joints. The examination revealed deformity, weakened movement, and pain in the right ankle, and disturbance in locomotion in the right knee. Pg. 16, 37/68. The examination did not address the Veteran’s contentions of an abnormal gait caused by the service-connected disability (secondary service connection), or the hip injury in 2004, while the Veteran was on Reserve duty (direct service connection). The December 2020 examiner opined the Veteran’s left hip condition was not aggravated beyond its natural progression by a service-connected disability. See C&P, 12/31/2020, pg. 3/4. He opined the iliac crest is anatomically remote from the hip joint and is a common place for bone grafts to be obtained due to its low physiologic impact. He concluded medical literature supports a finding “it is unequivocally unrelated to the Veteran’s current diagnoses including cam impingement and osteoarthritis.” Again, however, the examiner did not address the Veteran’s contention that his left hip condition is due to his altered gait or compensation mechanisms from his service-connected disability. Nor did the examiner opine on the Veteran’s 2004 fall injury during his service in the Reserves component. The Board finds the VA examinations inadequate for failure to consider and fully address the Veteran’s lay statements, the abnormal gait or limb length, as shown in the medical record, and the May 2004 hip injury the Veteran reports. The Veteran submitted contemporaneous medical records and other service records tending to support that an injury occurred in 2004. See, MTR- Non-Gov, 2/7/2017, pg 2/5. A lay statement from witness, REW, also supports the Veteran’s assertion that he fell during a biannual physical fitness assessment in the Navy Reserves on May 15, 2004. See Correspondence, 2/3/2021. It is unclear the characterization of the Veteran’s service at the time of injury. In accordance with 38 U.S.C. § 106, VA has the authority to determine whether a claimant was in active service, including ACDUTRA or INACDUTRA, at the time a claimed injury occurred. Only official service department records can establish if and when an individual was in active service, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). On remand, the Veteran’s periods of active service, ACDUTRA, and INACDUTRA must be verified, and if applicable, an additional medical opinion on direct service connection should be obtained for the 2004 injury. Accordingly, the matters are REMANDED for the following action: 1. Undertake appropriate action to verify all of the Veteran’s period of active duty, ACDUTRA, and INACDUTRA with the U.S. Navy Reserves – specifically with regard to the duty status at the time of the biannual physical fitness assessment in the Navy Reserves on May 15, 2004. Any records obtained must be associated with the claims file. 2. Provide the Veteran’s claims file to an appropriate examiner for review regarding the nature and etiology of the Veteran’s left hip conditions. (An in-person examination should be performed only if the examiner deems one necessary to complete the opinion.) Following review of the claims file, the examiner should opine on the Veteran’s left hip condition as to: (a.) whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran’s service-connected right leg or ankle disabilities – to include the gait disturbance caused by these disabilities – proximately caused the Veteran’s left hip condition or pain. (b.) whether it is at least as likely as not (at least a 50 percent likelihood) the Veteran’s right leg or ankle disabilities – to include the gait disturbance caused by these disabilities – aggravated the Veteran’s left hip condition beyond natural progression. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. 3. If the biannual physical fitness assessment in the Navy Reserves on May 15, 2004 is found to have been on a period of ACDUTRA or INACDUTRA service, obtain an opinion as to the following: (a.) whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran’s left hip condition is the result of an injury incurred or aggravated in the line of duty during, or is otherwise the result of an incident in service. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions surrounding the injury, and the accompanying buddy statements, must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.