Citation Nr: 21025847 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-54 073 DATE: April 29, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1955 to May 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In an April 2019 decision the Board, among other things, remanded the matters to the rating to the Agency of Original Jurisdiction (AOJ) for additional development. Entitlement to service connection for back and bilateral hip disabilities are remanded. The Veteran is seeking service connection for back and bilateral hip disabilities secondary to his service-connected varicose veins of the lower extremities. In April 2019, the Board remanded these issues to arrange for a VA examiner to provide opinions on, among other things, whether the claimed back and hip disabilities are secondary to the Veteran's service-connected disabilities to include his varicose veins. See El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). The Veteran was provided VA hip and back examinations in October 2020. Bilateral hip pain and a lumbosacral strain were diagnosed. The examiner noted there was not scientific literature supporting a relationship between a hip disability and varicose veins, but only opined the bilateral hip disability was less likely not related to service and did not address whether the hip disability was caused or aggravated by the service-connected varicose veins. In addition, while the examiner opined the it was less likely than not that the back disability was proximately due to or the result of the Veteran’s service-connected disabilities, he did not address aggravation. Under these circumstances, the Board finds the AOJ erred by not obtaining adequate opinions that complied with the Board's remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, while the Board sincerely regrets the additional delay in the adjudication of this appeal, it must nonetheless remand the matters of service connection for back and hip disabilities so new opinions can be obtained. See 38 U.S.C.§ 5103A(d). When obtaining the opinion and again adjudicating the claims, first the examiner and thereafter the AOJ should be mindful of the fact that since this appeal was last before the Board the United States Court of Appeals for Veterans Claims (Court) in Ward v. Wilkie, 31 Vet. App. 233 (2019) provided a new definition of aggravation which now includes a temporary worsening of a disability. While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. In order to comply with the April 2019 Remand, obtain an addendum opinion from a qualified medical professional to address the nature and origin of the Veteran’s back and bilateral hip disabilities. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: (a) Is at least as likely as not (a 50% or greater probability) that the back disability and/or the bilateral hip disabilities was caused by a service-connected disability, to include the Veteran’s left and right lower extremity varicose veins. (b) Is at least as likely as not (a 50% or greater probability) that the back disability and/or the bilateral hip disabilities was aggravated by (the concept of aggravation must be specifically addressed) by a service-connected disability, to include the Veteran’s left and right lower extremity varicose veins. In providing the aggravation opinion the examiner should specifically consider and discuss the Court in Ward, supra, new definition of aggravation which now includes temporary worsening of a disability. In providing answers to all the above questions the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to all the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.