Citation Nr: 21022115 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 13-27 810 DATE: April 14, 2021 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to an initial rating in excess of 10 percent for lower back pain is remanded. Entitlement to an initial rating in excess of 10 percent for right knee limitation of flexion is remanded. Entitlement to a separate compensable rating prior to March 7, 2016, and in excess of 10 percent from that date for instability of the right knee is remanded. Entitlement to an initial rating in excess of 10 percent for left knee limitation of flexion is remanded. Entitlement to a separate compensable rating prior to March 7, 2016, and in excess of 10 percent from that date for instability of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1977 to November 1980 and from November 1983 to March 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2011 rating decision, the RO granted service connection for a low back disability and right and left knee disabilities, each rated at 10 percent effective October 22, 2010. In addition, the RO denied service connection for neck and right and left hip disabilities. In January 2016, the Board remanded these matters for additional development. In a May 2016 rating decision, the RO granted separate disability ratings for instability of the right and left knees, each rated at 10 percent effective March 7, 2016. In June 2020, the Board again remanded these matters for additional development. In its June 2020 remand, the Board noted that private treatment records obtained pursuant to the January 2016 Board remand reflected that the Veteran had undergone cervical spine surgery in connection with injuries sustained in a December 2005 motor vehicle accident during his employment as a Sherriff's deputy. On remand, the Veteran was asked to complete release forms for any private treatment he had undergone and to provide all available medical records related to your involvement in a 2005 motor vehicle accident. The Veteran did not provide release forms or any additional records. However, the evidence of record provides additional information regarding records that may be relevant to the claim on appeal. An Employee First Report Accident Injury from the Marin County Sheriff’s Department reflecting that the Veteran was in a motor vehicle accident in December 2005 shows that he was treated at Martin Memorial North Hospital Emergency Room. On remand, these treatment records should be obtained and added to the claims file. In addition, VA medical records that have been added to the file since the last remand reflect that the Veteran has been undergoing pain management treatment from a private provider, Dr. Rasso. These records are not part of the claims file and may be relevant to the Veteran’s claims on appeal. The Veteran’s records also show that he receives ongoing treatment from Dr. Libman; however, the most recent records in the claims file from this physician are dated in April 2017. On remand, current treatment records should be obtained from this provider and added to the record. The Veteran has contended that he began having bilateral hip pain in service. He also contends that his right and left hip disabilities are secondary to his service-connected back disability. In its June 2020 remand, the Board found that a March 2016 examination report that found that the Veteran’s bilateral hip pain was not related to service was inadequate, as the examiner did not appropriately address the Veteran's assertion of experiencing hip pain in service, which he was competent to recall. In addition, the examiner did not provide an opinion as to whether the Veteran's has a hip disorder which is aggravated by his service-connected low back pain. Pursuant to the Board’s remand directives, the Veteran was provided with a new VA examination in October 2020. The October 2020 opinion is inadequate for the following reasons. The examiner opined that, while the Veteran was competent to report a history of hip pain, the Veteran’s hip condition is less likely as not related to military service in the absence of any in service or immediately post service complaint of hip pain or diagnosis of hip condition. He noted there was no evidence that the complained of hip pain while in the service or on his separation medical history because there were no reports of pain in his service treatment records. The examiner impermissibly discounted the Veteran’s reports of in-service hip pain solely on the absence of these reports in his service treatment records. As this opinion relies on the lack of contemporaneous medical evidence, it is inadequate. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The examiner additionally opined that there was no direct or indirect causal relationship between the Veteran’s lumbosacral spine condition and the development of a hip joint condition, and that the Veteran's current hip condition was not aggravated by his lumbosacral spine condition. However, the examiner did not provide any rationale for this opinion. On remand, another opinion should be obtained as to whether the Veteran’s bilateral hip disorders are related to service or to his service-connected disabilities. The examiner must address his reports of in-service hip pain and provide a thorough rationale for any opinion provided. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Martin Memorial North Hospital Emergency Room for treatment in December 2005, for pain management treatment with Dr. Rasso, and for Dr. Libman since April 2017. Make two requests for the authorized records from these providers unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion, with a VA examination if necessary, for the Veteran’s bilateral hip disabilities. The examiner must review the claims file. The examiner is asked to provide an opinion as to: (a) whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right and left hip disabilities are related to service, including his reported in-service hip pain, (b) whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right or left hip disorders have been caused (in whole or in part) by his service-connected lumbosacral spine disability; and (c) whether it is at least as likely as not (50 percent probability or more) that the Veteran's right or left hip disorders have been aggravated (has undergone a measurable increase in its severity as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected lumbosacral spine disability. If the Veteran’s current right or left hip disabilities have been aggravated by his service lumbosacral spine disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or (Continued on the next page)   are the Veteran’s reports generally inconsistent with medical knowledge or implausible? J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.