Citation Nr: 21016108 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-16 892 DATE: March 19, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a hernia is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability of the right hip remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1971 to October 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2017 VA Form 9, Appeal to the Board of Veterans’ Appeals, the Veteran requested a hearing before the Board. However, in an April 2017 correspondence, the Veteran withdrew the hearing request. Accordingly, the Board considers the request for a hearing to be withdrawn and will adjudicate the claims accordingly. 38 C.F.R. § 20.704(d), (e). In January 2018, September 2018, and September 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for a right hip disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a right hip disability.   VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one.  Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997).  Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).   The Veteran contends that a currently diagnosed right hip disability is the result of service.  Specifically, the Veteran asserts a current right hip disability began during active duty service and continues to the present.   The Veteran was last examined by VA in July 2020. During that examination, the Veteran was diagnosed with right hip joint replacement. The Board finds the July 2020 VA examination to be incomplete for rating purposes because the examiner did not provide an opinion as to functional loss after repeated use over time without resorting to speculation. An opinion is speculative when it is based on the absence of procurable information or an examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Direct observation of functional impairment is not a prerequisite to offering an opinion. Case law and VA guidelines anticipate that examiners will offer opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans. Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the July 2020 VA hip examination is incomplete, the Board finds that the September Board 2019 remand instructions were not completed. Consequently, the Board cannot consider the development requested to be substantially accomplished, and the claims must be again remanded to complete the requests in the September 2019 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655. 2. Entitlement to compensation under 38 U.S.C. § 1151 additional disability of the right hip The Veteran claims compensation under 38 U.S.C. § 1151 for additional disability of the right hip due to misdiagnosis by medical personnel at the Des Moines VA Medical Center. Specifically, the Veteran asserts administrative negligence of repeated denials by the chief of staff. The Veteran believes that denying the Veteran an EMG, a neurological consult, and the results of an unclear X-ray and delayed treatment resulted in his hip condition deteriorating faster and causing more severe disability than would have been the case if he had received treatment by VA when he first sought treatment. During VA examination in November 2020, after review of the claims file, the examiner, a neurologist, stated that the VA diagnosis and treatment of the right hip disability was appropriate and timely, that accepted appropriate protocols were followed, and that the standard of care was met. The examiner stated that it was less as likely as not that the claimed condition was caused by or became worse as a result of the VA treatment; had additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; or that additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner explained that the July 2020 VA hip and thigh examination documented the Veteran having an emergency room visit on August 17, 2015, for acute worsening of right-sided low back pain with radiation to the buttocks and right foot. The examiner noted that the Veteran was treated with an injection of Toradol for the pain. Imaging studies were also performed and showed only early degenerative changes of the lumbar spine without acute injury. The management performed at the ER, including the use of Toradol for the treatment of the Veteran’s acute worsening of already existent low back pain, was found to be reasonable. The examiner further explained that, according to VA examination in July 2020, the Veteran already had existing low back pain with radiation to the right foot when he went to the ER on August 17, 2015. That type of back pain with radiation to the foot is characteristic for radiculopathy. Therefore, it was likely that the Veteran’s lower right extremity radiculopathy condition already existed, even prior to treatment with Toradol given on August 17, 2015. Treatment with a Toradol injection is not a cause of radiculopathy, and it is unrelated to the Veteran’s radiculopathy condition. Sacroiliitis is also not caused by Toradol injections used to treat pain. Sacroiliitis is often a component of more generalized arthritic conditions and is often seen and associated with autoimmune arthritides. The hip and thigh examination notes that the Veteran appeared to have a polyneuropathy of unclear etiology that had no relationship to injection given in the fall of 2015. Peripheral polyneuropathy is very common, and there are many conditions known to cause and be associated with polyneuropathy. Without having examined the Veteran and without obtaining a thorough medical history, to include a review of all of the veteran’s comorbid medical conditions, the examiner stated that he was unable to comment on the nature and etiology of the veteran’s polyneuropathy diagnosis. The Board finds the July 2020 medical opinion to be inadequate, as the examiner relied, in part, on the findings of the July 2020 VA examination. As previously stated above, the July 2020 VA examination itself has been found to be inadequate for rating purposes and cannot be used as rationale to support a medical opinion regarding the claim. Therefore, the Board finds that the Boards September 2019 remand instructions were not completed. Consequently, the Board cannot consider the development requested to be substantially accomplished, and the claims must be again remanded to complete the requests in the September 2019 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to service connection for a hernia is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a hernia.   VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one.  Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997).  Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).   The Veteran contends that a currently diagnosed hernia disability is secondary to or aggravated by s claimed right hip disability.   At a July 2020 VA examination, the examiner diagnosed an inguinal hernia. After review of the claims file and in-person examination, the examiner opined that the claimed hernia was less likely than not (less than 50 percent probability) related to or due to time or event in service.  The examiner explained that the Veteran had no documented findings of or complaints related to right inguinal hernia until decades after service, at which point the right inguinal hernia was still quite small. The right inguinal hernia developed years after service, and was not possibly due to any time or event in service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board finds the July 2020 VA examination to be incomplete.  In essence, the July 2020 VA examiner reasoned that because the inguinal hernia did not begin in service, the claimed disability was not the result of service. An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the July 2020 examiner relied on the absence of chronic symptoms or treatment in-service for the negative opinion concerning the demonstrated disability, the Board finds the July 2020 VA examination to be incomplete.  Because the Veteran may have a disability that is related to service or a service-connected disability, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of the Veteran’s clamed inguinal hernia. Therefore, on remand an examination must be scheduled and an opinion as to the etiology of the Veteran’s inguinal hernia disability should be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Additionally, and importantly, the Board further finds that the issue of service connection for a hernia is inextricably intertwined with the issue of service connection for a right hip disability. Specifically, the Veteran asserts that an inguinal hernia is secondary to or aggravated by a right hip disability. Thus, because the issue of entitlement to service connection for a right hip disability will have a substantial effect on the merits of a claim for service connection for a hernia, they are inextricably intertwined. Since that claim is being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that derivative claim prior to the determination of the other claim. Therefore, the adjudication of the inguinal hernia claim must be deferred pending resolution of the right hip claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Because a decision on the remanded issue of entitlement service connection for a right hip disability and service connection for a hernia could significantly impact a decision on the issue of entitlement TDIU, the Board finds that the issues are inextricably intertwined. Because the claims are being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that TDIU claim prior to the determination of the other claim. Therefore, the adjudication of the TDIU claim must be deferred pending resolution of that claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to treatment for all the claimed disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA.  On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record.  If identified records are not obtained, then notify the Veteran.  38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA hip examination conducted by an orthopedist who has not previously examined the Veteran to assist in determining the etiology of any right hip disabilities, and any relationship to VA treatment. The examiner must review the record, including this Remand, the Board’s September 2019 Remand, the Board’s September 2018 Remand, and the Board’s January 2018, the VA treatment reports, the private treatment records, the Veteran's lay statements, and the November 2016 and January 2017 letters from a private examiner, suggesting that the Veteran's right hip disability worsened due to VA treatment, and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide the following opinions: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran has any additional right hip disability was caused by VA treatment, VA misdiagnosis, or any delay in providing treatment by VA? b. If there is additional right hip disability, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment to the Veteran? c. If there is additional right hip disability, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of an event not reasonably foreseeable? Whether the proximate cause of any additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. d. Opine whether it is at least as likely as not (50 percent or greater probability) that any right hip disability is etiologically related to active service or any event, disease, or injury during active service, including whether the disability (1) began during active service, (2) manifested as right hip arthritis within one year after separation from a period of active service, or (3) was noted during service with continuity of the same symptomatology since service.  The examiner should address the Veteran’s lay statements, including hearing testimony, regarding the right hip disability and its etiology, and any symptoms during and since service.  A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any hernia.  The examiner must review the claims file and should note that review in the report.  Any studies or tests deemed necessary should be performed.  The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any hernia is etiologically related to active service or any event, disease, or injury during active service, including whether the disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by any service-connected disability or treatment for any service-connected disability, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability. The examiner should address the Veteran’s lay statements regarding the hernia disability and its etiology, and any symptoms during and since service.  A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. The examiner is also asked to comment on the impact of the service-connected disabilities on employment and activities of daily life. The examiner should opine whether it was at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, which was consistent with education and training. If the Veteran is found to be capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would have been necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.