Citation Nr: 21023260 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-23 694 DATE: April 20, 2021 ORDER Entitlement to service connection for right hip disabilities, diagnosed as degenerative arthritis and trochanter bursitis, are granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The most probative evidence reflects that the Veteran’s service-connected right hip disabilities are caused or aggravated by one or more of the Veteran’s service-connected disabilities. CONCLUSION OF LAW The criteria to establish service connection for right hip disabilities, diagnosed as degenerative arthritis and trochanter bursitis, are demonstrated. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1970 to February 1979. This matter comes to the Board of Veterans' Appeals (Board) from an October 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. These appealed issues, among others, were denied by the Board in a January 2019 decision. The Veteran appealed the portions of the Board’s January 2019 decision which denied these issues to the United States Court of Appeals for Veteran’s Claims (the Court). While the appeal was pending at the Court, a private attorney representing the Veteran and a member of VA’s Office of General Counsel entered into a Joint Motion for Partial Remand (Joint Motion) that was endorsed by the Court in November 2020. The Veteran’s appealed issues have been returned to the Board with instructions in furtherance of the parties’ agreements in the Court-endorsed November 2020 Joint Motion. 1. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability Service connection may 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 disease or injury. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310 (b). Analysis The Veteran contends that he has a right hip disability that has been caused or aggravated by an altered gait due to his service-connected bilateral knee disabilities. The Veteran was initially provided a VA examination in connection with this claim in September 2011, and the examiner did not identify any disability of the right hip; however, subsequent medical evidence reflects diagnoses of degenerative arthritis and trochanter bursitis of the right hip during the appeal period. To that extent, element (1) to establish secondary service connection has been demonstrated. McClain v. Nicholson, 21 Vet. App. 319 (2007). Further, element (2) has been demonstrated, as service connection has been in effect for bilateral knee disabilities, to include total knee replacements, throughout the entirety of the appeal period. In light of above, the crux of the Veteran’s appeal is whether the most probative evidence reflects that his right hip disabilities are caused or aggravated by a service-connected disability, as the Veteran alleges. The AOJ obtained medical opinions addressing this point in November 2016 and March 2017; however, the examiner’s opinions were unfavorable to the Veteran’s appeal, as the examiner opined that the Veteran’s right hip degenerative arthritis represented “age-appropriate structural changes.” The Board’s notes the limited probative weight of these opinions, as neither address the etiology of the Veteran’s trochanter bursitis. In support of his appeal, the Veteran has submitted nexus opinion from two private clinicians, who opined in April 2018 and December 2020 that the Veteran’s antalgic gait, resulting from his service-connected bilateral knee disabilities, “aided in the development of,” permanently aggravated,” and “create[ed]” the Veteran’s current right hip disabilities. The Board finds these private opinions to be highly probative of the matter at issue, as each was rendered after a review of the complete record and cite to evidence congruent with that in the Veteran’s file. In light of above, the Board finds that the most probative evidence supports the Veteran’s assertions of a medical nexus between his service-connected bilateral knee disabilities and his current right hip disabilities. As such, element (3) to establish secondary service connection has been met, and service connection for both right hip disabilities is warranted. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. While further delay is regrettable, the Board concludes that additional development is necessary prior to the readjudication of the Veteran’s appeal seeking a TDIU. It appears that the Veteran filed for disability benefits from the Social Security Administration (SSA) prior to the appeal period for consideration. In this application for Federal benefits, the Veteran reported that he stopped working as an electrician with the Federal Government in February 2004 due to symptoms associated with disabilities of the right shoulder and arm (bicep). It appears that the SSA granted the Veteran’s claim for disability benefits, beginning on August 2004; however, a favorable decision from the SSA and the evidence upon which was based have not been sought or obtained by the AOJ. While not dispositive in this matter, the Board finds that the Veteran’s complete SSA file would be beneficial due to many inconsistencies in the Veteran’s reported work and disability histories, as will be noted below. In January 2007, the Veteran reported to a VA clinician that he stopped working as an electrician approximately three years ago due to symptoms associated with shoulder and knee disabilities. Due to the functional impact of these disabilities, the Veteran asserted that he “plans to return to [a] desk job.” Despite this assertion, the Veteran has not provided any information to VA concerning what type of “desk job” he has performed in the past. Indeed, the Veteran’s TDIU filing notes two years of college education in the concentration of business administration, which is congruent with a “desk job.” The Veteran’s verbiage of “return[ing]” to a desk job connotes that he participated in such an occupation in the past; however, he has not shared this occupational experience with VA. As such, a remand is necessary to obtain an accurate occupational history from the Veteran. Further, the Veteran’s TDIU filings in 2010 reflected that he received, or planned to receive, workers compensation benefits; however, an identical filing in February 2015 reflects that the Veteran denied receiving such benefits. The file is devoid of any actions by the AOJ to seek or obtain records in connection with such a claim. The Board concludes that this evidence is germane to the matter before the Board, and thus, a remand is necessary so that these records may be obtained and associated with the file. Lastly, the Board observes that the Veteran has submitted several private opinions concerning the impact of the Veteran’s various and varied service-connected disabilities on his ability to participate in his former occupation as an electrician. Nonetheless, the probative weight of this evidence is compromised by the clinicians’ lack of mention of the Veteran’s right shoulder and bicep disabilities (which formed the crux of his fruitful claim for SSA disability benefits) and/or further information concerning the “desk job” to which the Veteran planned to return to January 2007. After the development above is complete, additional vocational assessments may be necessary in light of the totality of the record. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records and associate them with the claims file, with the Veteran’s assistance regarding the latter. 2. The AOJ must contact the Veteran and ask that he provide a complete and accurate accounting of his educational and occupational histories. To this point, the Board is specifically interested in the “desk job” to which the Veteran reported that he planned to return in January 2007. 3. The AOJ must obtain and associate with the file any decision concerning the appellant’s disability benefits from the Social Security Administration (SSA), to include the treatment records on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 4. The AOJ must contact the Veteran to request that he identify all claims for workman's compensation benefits filed with the Department of Labor's Office of Workers' Compensation Programs (OWCP) and/or Ohio Bureau of Workers' Compensation. With the Veteran's authorization, the records associated with any identified claim must be obtained and associated with the file. If any identified records are found to be unavailable for review, this must be memorialized within the Veteran's file. 5. Thereafter, the AOJ must undertake any development necessary in order to readjudicate the Veteran’s appeal for a TDIU, to include obtaining vocational assessment opinions, if necessary. (Continued on the next page)   Thereafter, the AOJ must readjudicate the Veteran’s TDIU based on the totality of the evidence of record. If the appeal is not granted to the fullest extent, the Veteran and his private attorney must be provided a copy of the readjudication and afforded an adequate opportunity to respond. . SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.