Citation Nr: 21026515 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-08 352 DATE: May 3, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left leg disability, claimed as a leg length discrepancy, is remanded. REASONS FOR REMAND The Veteran has active service from May 1957 to November 1958. This case is before the Board of Veterans' Appeals (Board) from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a November 2017 hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. Generally, a judge who presides over a Board hearing must also participate in adjudication of the case. In a March 2021 letter, the Veteran was advised of the forgoing, and afforded the opportunity to request a hearing before another VLJ. (03/09/2021 BVA Letter). The Veteran was advised in the letter, that if a response was not received within 30 days from the date of the letter, the Board will assume another hearing was not desired, and proceed accordingly. The 30 days have passed, with no response from the Veteran. As provided in the notice, the Board will now proceed with adjudication of the Veteran's appeal. In February 2018, the Board reopened the Veteran's previously denied claims for his hip and left leg, finding new and material evidence had been received. At that time, the Board also remanded the issues for additional development: to obtain outstanding VA medical records from 1958 to 1986, and records after October 2017. The matters were remanded again in January 2020 for additional development: to obtain medical examinations and nexus opinions. Although examinations were obtained and nexus opinions were provided, for the reasons set forth below, the Board finds additional remand is required. As a separate matter, on July 12, 1973, a fire at the National Personnel Records Center (NPRC) in St. Louis destroyed approximately 80 percent of the records NPRC held for Veterans who were discharged from the Army between November 1, 1912, and January 1, 1960. The Board notes that the Veteran's records were fire related (7/14/2017 Military Personnel Record, pg. 5; 8/08/2017 VA 21-3101 Request for Information 07/06/2017 Subsequent Development Letter; 6/18/2003 Correspondence; 11/26/1975 MAP-D Development Letter). As the Veteran's in-service records are unavailable and were likely destroyed in the NPRC fire, the VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Low back disability. 2. Left hip disability. 3. Left leg disability, claimed as a leg length discrepancy. The Veteran contends an in-service football injury either caused or led to the discovery of the three disabilities for which he is seeking service connection. He contends that, when he landed after being hit during the football game, he injured his back and left hip. He also contends that these injuries caused or contributed to a left leg length discrepancy. The Veteran testified that he suffered bone disease of the left hip shortly following the football injury (11/13/2017 Hearing Transcript, pgs. 4-7; 4/03/2020 C&P Exam, pg. 4; 2/25/2021 Appellate Brief). The question for the Board is whether the Veteran's currently diagnosed chronic low back pain, degenerative arthritis of the spine and left hip, and left leg length discrepancy, began during service or are at least as likely as not related to an in-service injury, event, or disease, specifically including the described injury while playing football during service (10/14/2020 CAPRI, pg. 8; 4/03/2020 C&P Exam; 9/15/2017 CAPRI, pgs. 12-13; 3/13/2012 VA Examination, pg. 5). In addition to the Veteran's service records having been destroyed in the 1973 NMPC fire, the Veteran has explained that he did not seek medical attention for his leg or back during service because his commander had indicated he would be sent home if he did (11/13/2017 Hearing Transcript, pg. 4). The Board notes that post service medical records from January 1977 note the Veteran's left leg length discrepancy was life-long, and he was told about the condition when he was 15 years of age. Also, in January 1977, the Veteran also complained of left leg pain, stating that he first noticed the shooting pain while in the service (7/25/2006 Medical Treatment Record - Government Facility, pgs. 8 and 12). April 2020 VA examinations of the Veteran's hip, back, and left leg are of record. Negative nexus opinions were rendered. With regard to the Veteran's left leg discrepancy, the examiner explained that leg length discrepancy etiologies include broken bone, typically occurring in childhood that affects the growth plate, bone infections, bone diseases (neurofibromatosis, multiple hereditary, exostoses, Ollier disease), and neurologic causes. The examiner indicated these were not observed in the Veteran's history and treatment records near onset of hip pain. In some cases, limb discrepancy does not have a known cause and is classified as idiopathic (4/03/2020 C&P Exam, pg. 2). It was not clear whether the examiner considered the Veteran's post service medical history noting that the Veteran's left leg discrepancy was known to the Veteran at the age of 15. In that regard, the examiner did not address whether the Veteran's left leg discrepancy was a congenital defect, and if so, whether his service, to include a football injury as described by the Veteran, and hospitalization for arthritis as described during his September 1982 hearing, suggest disabilities were superimposed upon the congenital defect (9/09/1982 Hearing Testimony). While the Board regrets additional delay, the matters are REMANDED for the following action: Forward the claims file to the April 2020 VA examiner if available (if not available, to a comparably qualified and appropriate clinician) for an addendum opinion consistent with this remand. In formulating the opinions, the examiner should review the Veteran's claim file and with regard to his medical records note that the service treatment records are unavailable, presumed to have been destroyed in the NMPC fire in 1973, and that records from November 1958 to November 1977 are not available (8/24/2018 STR Medical). The examiner should address whether it is at least as likely as not any lower back, hip or left leg disability to include a left leg length discrepancy, was incurred during or due to active service. The examiner should address whether the Veteran's left leg length discrepancy is a congenital abnormality that is considered a disease (capable of getting better or worse) or a defect (a static condition)? If considered a disease, it is as likely as not that the left leg length discrepancy was aggravated (increased in severity beyond natural progression) by active service? If considered a defect, does the Veteran have any superimposed disabilities due to the left leg length discrepancy, to include but not limited to back or hip disabilities, to include chronic pain or arthritis? If so, is it as likely as not that any superimposed disability was due to an event or illness during active service? The reasons for all opinions should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided The examiner is reminded to consider the Veteran's lay reports, and a reason must be provided if the Veteran's lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran's contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any inservice injury or event, the examiner should include that information in his remarks. If it is not possible to provide an opinion without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.