Citation Nr: 21028487 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-19 944 DATE: May 11, 2021 REMANDED Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a low back disorder, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from September 7, 1973, to October 29, 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office. In November 2018, the Board, in pertinent part, reopened but denied the claim for service connection for a left hip disability. The Board therein also denied entitlement to service connection for a low back disability claimed as due to a left hip disability. The Veteran appealed those aspects of the Board's decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In August 2020, CAVC issued an Order vacating, in part, the November 2018 denial, and returned the case to the Board for action consistent with the associated Memorandum Decision. 1. Entitlement to service connection for a left hip disorder is remanded. 2. Entitlement to service connection for a low back disorder, to include as secondary to service-connected disability, is remanded. The Veteran generally contends that his left hip disability was caused or aggravated by his active duty military service. In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran's service medical records do not contain a service entrance examination report. Absent evidence to the contrary, it is presumed that an entrance examination is provided prior to all periods of active duty service. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody)). However, a threshold requirement for the applicability of the presumption of soundness is that the Veteran must have served on active duty for a continuous period of 90 days or more. 38 U.S.C. § 1111. In this case, the Veteran served for less than two months and, therefore, is not shown to have served 90 days on active duty. Therefore, the Veteran's service is not entitled to potential application of the presumption of soundness. Grose v. Brown, 4 Vet. App. 144 (1993). A September 14, 1973, medical board examination report reflects that the Veteran had a diagnosis of status post intertrochanteric fracture, left femur and a diagnosis of status post open reduction and internal fixation, femur and limitation of motion, left hip, secondary to diagnosis number one. In a September 18, 1973, medical board report, the examiner noted that the Veteran had a history of multiple gunshot wounds in September 1972. The examiner reported that one wound involved the intertrochanteric region of the left femur causing a fracture and necessitating an open reduction with internal fixation surgical procedure. He reported that at the time of the examination, the Veteran was in his first week of basic training and had severe pain localized in the left hip. It was recommended that the Veteran was unfit for induction and should be separated from the service. An October 1973 report of medical board proceedings reflects that both the status post intertrochanteric fracture, left femur, status post open reduction and internal fixation and limitation of motion, left hip existed prior to entry on active duty and was not aggravated by active duty. Post-service medical treatment records reflect a diagnosis of osteoarthritis of the left hip. In the August 2020 Memorandum Decision, the Court found that the Board erred in failing to provide the Veteran a VA examination or explain why no examination was necessary. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. As noted above, the Veteran's service medical records reflect that the Veteran began to complain of left hip pain following the beginning of basic training. In a March 2011 statement, the Veteran reported that since separation, he has had severe pain in his left hip. Post-service medical treatment records reflect continued complaints of pain with an eventual diagnosis of osteoarthritis in his left hip. As the Veteran has a current diagnosis of osteoarthritis in the left hip, he complained of left hip pain in service, and this complaint did not begin until after basic training activities, the low threshold for obtaining a VA medical opinion regarding the Veteran's left hip claim has been met in this case. See 38 U.S.C. § 5103A(d); McClendon, 20 Vet. App. at 81. Accordingly, a remand is necessary for a VA medical examination and opinion addressing the nature and etiology of the Veteran's left hip disorder. The Veteran also claims service connection for a low back disorder secondary to his left hip disorder. However, as noted above, he has not yet established service connection for a left hip disorder. The outcome of this claim will impact the Veteran's current claim of entitlement to service connection for a back disability and must be addressed prior to further adjudication of this matter. As such, the claims are inextricably intertwined, and the service connection claim for a low back disorder must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: Schedule the Veteran for an appropriate examination with a clinician who can provide a medical opinion addressing the etiology of the Veteran's claimed left hip disorder and low back disorder. Following a review of the record, to include a copy of this Remand, and all necessary testing, the clinician should address the following inquiries: a. Clearly identify all left hip disorders and back disorders that have been present at any point pertinent to the Veteran's October 2013 claim, even if such is asymptomatic or has since resolved. If no such disorder is diagnosed, the clinician should offer an opinion as to whether the Veteran's symptomatology results in functional impairment of earning capacity. If so, the clinician is advised that he or she should accept that the Veteran has a disability for the purpose of rendering the opinions requested below. b. Offer an opinion as to whether there is clear and unmistakable evidence that any diagnosed left hip disorder pre-existed his period of service from September 7, 1973, to October 29, 1973. c. If the answer to (b) is yes, then state whether there is clear and unmistakable evidence that the pre-existing left hip disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during such period of service. If there was an increase in the severity of the Veteran's disorder(s), the clinician should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. d. If there is not clear and unmistakable evidence that a current left hip disorder(s) pre-existed the Veteran's period of service, the clinician should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, such period of service, to include the documented status post intertrochanteric fracture, left femur, status post open reduction and internal fixation and limitation of motion, left hip and medical discharge from service. e. For the diagnosis of osteoarthritis, the clinician should offer an opinion as to whether such manifested to a compensable degree within one year of the Veteran's discharge from service in October 1973 (i.e., by October 1974). f. The clinician should also offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed low back disorder is proximately due to and/or aggravated by a current left hip disorder. For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinions, the clinician must consider and discuss all lay assertions, to include any assertions as to in-service events, and as to the nature, onset, and continuity of symptoms. A complete rationale should be provided for any opinion offered. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.