Citation Nr: 21030051 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-06 502A DATE: May 17, 2021 ORDER Entitlement to service connection for osteoarthritis of the right hip (claimed as a right hip disability) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his osteoarthritis of the right hip was incurred in or caused by military service. CONCLUSION OF LAW The criteria for entitlement to service connection for osteoarthritis of the right hip have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This matter was previously before the Board in June 2018, wherein the Board denied entitlement to service connection for a right hip disability. The Veteran subsequently appealed this decision to the United States Court of Veterans Claims (Court). In April 2019, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated part of the June 2018 Board decision that denied entitlement to a right hip disability. The Court found that the Board erred in not ensuring that the VA satisfied the duty to assist in providing an adequate medical examination with respect to the Veteran's right hip disability. The matter was most recently before the Board in September 2019. The Board remanded the issues for further development, to include obtaining an addendum examination. The matter has returned to the Board for adjudication. The pending appeals for a rating in excess of 10 percent for an acquired psychiatric disorder, a rating in excess of 10 percent for a gastric ulcer, a rating in excess of 10 percent for a respiratory disorder, service connection for a gastrointestinal disorder, service connection for a back disorder, service connection for erectile disorder, and entitlement to a total disability rating based upon individual unemployability are being developed by the RO and they are not before the Board at this time. The Veteran contends that his right hip disability was a result of a fall in service when he was injured attempting to keep a heavy fuel drum from falling, or in the alternative, secondary to his low back disability. See February 2014 Statement in Support of Claim. The Board notes that the Veteran's claim for a low back disability is currently on appeal and is being developed by the RO as stated above. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's service treatment records show that the Veteran was seen in August 1975 for a complaint of right hip pain. He was diagnosed with muscular discomfort of the right hip pain. The Veteran was afforded a VA examination in August 2014. The Veteran was diagnosed with degenerative joint disease of the right hip. The Veteran noted the history of his condition and remarked that it began in 1973 to 1974 when he developed right hip pain from trying to load and carry a heavy load of equipment while working another job other than his flight line duty. He stated he was treated in the service thirty-seven times while on the flight line for right area hip pain. He was seen by medics and transferred to administrative duties to relieve stress of heavy lifting that was required on the flight line. The VA examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated as rationale that the Veteran was in the service from 1973 to 1977 and the Veteran did not have any complaints relating to his right hip. His discharge summary in 1977 was negative for any hip complaints or disability. The parties agreed in the April 2019 JMPR that the Board erred when it failed to ensure VA fulfilled its duty to assist to provide an adequate medical examination with respect to Veteran's right hip disability. In this regard, the August 2014 examiner noted that he "was treated in service thirty-seven times while on the flight line for right hip area pain," however, in the rationale, the examiner found that Appellant "did not have any complaints relating to right hip" while in service. The parties agreed that the August 2014 examiner's rationale was inadequately explained and appears inconsistent with the Appellant's medical history. The September 2019 Board decision remanded the issue for a new VA examination as it found that the right hip condition was inextricably intertwined with the pending claim for service connection for a low back disability. The Board found that remand was also warranted to obtain a new examination and medical opinion addressing the nature and etiology of the claimed right hip disability as the Veteran's statements identified both orthopedic and neurologic impairment of the right hip. Additionally, the Board found that the parties agreed in the April 2019 JMPR that the May 2014 VA examiner's opinion was inadequate, and a new VA medical opinion was required. The Veteran was examined again by the VA in January 2020 and diagnosed with osteoarthritis of the right hip. The VA examiner opined that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. He stated that the record demonstrates that his right hip pain has been present for many years and has been associated strongly with his lower back pain. Today he has minimal decrease in range of motion of his right hip compared to his left, and this is limited by right buttock "hip" pain and right lower back pain. The examiner found that he does not have the anterior hip pain, or a right hip pain strongly associated with weight bearing that is typical of osteoarthritis of the hip. His mild osteoarthritis on x-ray is less likely than the source of his severe right posterior hip pain. Therefore, it is more likely than not that his right buttock/hip pain is related to his back condition and his right sided radiculopathy. The same VA examiner who conducted the January 2020 VA examination had stated in a February 2020 VA back examination that the Veteran had degenerative arthritis of the spine with radiculopathy of the right lower extremity and opined that the back condition was not due to service but due to the Veteran's age and well as an injury while working at the United States Postal Service and a motor vehicle accident. However, as previously noted, the VA examiner had stated in the January 2020 VA hip examination that the Veteran's right hip pain was due to military service but in his rationale explained that the right hip pain was associated with his lower back condition. In December 2020, the RO obtained an addendum medical opinion as it found that the January 2020 opinion was contradictory. The December 2020 VA examiner indicated he reviewed all relevant records pertaining to the Veteran's condition. He found that the diagnosis of osteoarthritis of the right hip is related to military service and that the current pain of the right hip is related to military service. In this regard, he opined that after review of the claims file, including the VA examinations from January 2020 and August 2014 in which the VA acknowledged injury to right hip while in service and the examiner's 2014 note confirming numerous (thirty-seven documented) treatments for the chronic right hip injury are all consistent with a significant and chronic right hip injury while the Veteran was in military service. The examiner stated that given this known significant injury history the diagnosis of osteoarthritis of the right hip is related to military service. He concluded that the current pain of the right hip is related to his military service. In January 2021, the RO obtained an addendum opinion from the same provider who issued the December 2020 medical opinion. The RO instructed the examiner to provide an addendum opinion as the Veteran did not have any complaints to his right hip on his discharge summary in 1977 and to determine whether the Veteran's reports of right hip pain are manifestations of neurological impairment involving the right lower extremity. The examiner was to opine whether the Veteran's right hip symptoms are due to the August 1975 complaint of right hip pain and an incident where the Veteran injured his low back attempting to keep a heavy fuel drum from falling. The VA examiner was to consider that post-service medical records showed that the Veteran injured his right hip in 1991 while working as a letter carrier. He was also asked to consider the July 2007 private x-ray that indicated mild degenerative changes of the right hip and that the Veteran received treatment for right hip arthritis throughout the claims period. The VA examiner found that the original injury and subsequent pain would be consistent with muscular injury rather than osteoarthritis. The x-ray in 2007 noted mild arthritis which supports that the original injury was muscular rather than bone fracture or arthritis. The right hip complaints are "pain" and no reference to radiating pain. Therefore, it is less likely than not neurological or radiculopathy in etiology. He concluded that the right hip pain is at least as likely as not limited to just the right hip. He stated that VA's note acknowledging injury to right hip while in service and the 2014 VA examination note confirming numerous (thirty-seven documented) treatments for the chronic right hip injury are all consistent with a significant and chronic right hip injury while the Veteran was in military service. Given this known significant injury history, the chronic right hip pain is at least as likely (50 percent or greater) related to an in-service injury, event, or disease. He noted that in regard to the Veteran's August 1975 complaint of right hip pain in the incident with the heavy fuel drum, the acknowledgement of the low back injury supports the service connection for the chronic right hip condition as this confirms that there was an originating injury while the Veteran was serving in the military. He also found that the orthopedic examination in 1975 supports the positive service connection opinion as this documents that existence of the injury while the Veteran was serving in the military. A muscular injury would also be consistent with findings of "only mild right hip osteoarthritis" in 2007 as the injury was primarily a muscular injury rather than a bone trauma. The examiner explained that while the March 1977 examination does not specify right hip pain, it does state joint pain which would include hip pain. Further, the January 2021 examiner indicated the VA acknowledged the right hip injury while in service and at least thirty-seven subsequent complaints of right hip pain. He found that given the onset during service and frequency of chronic right hip pain post service, it is unlikely that the Veteran's right hip was 100 percent healthy at the time of his 1977 examination. The examiner acknowledged that the Veteran was injured in 1991 while working as a letter carrier. He explained that while this may have aggravated the injury to the right hip, the history of right hip injury while in service and subsequent multiple follow up visits suggest that the likely etiology of the right hip pain is military service rather than the injury in 1991. He noted that the July 2007 findings would be consistent with a muscular injury, which is consistent with the orthopedic findings as this finding would not impact the evaluation of the service-related injury and the subsequent chronic right hip pain. It would be unusual to find arthritis in such a young veteran and rather the injury is more likely muscular in etiology. In March 2021, another addendum opinion was requested as the RO found that clarification was still needed for the right hip disability. The RO instructed the VA examiner that the note from the 2014 VA examination that confirmed numerous treatments for the right hip injury are not from the examiner, but history provided by the Veteran. The RO stated that there is no evidence that the Veteran was treated more than one time in August 1975. The RO instructed the VA examiner that the thirty-seven treatments in service are not documented and that the examiner is asked to provide an opinion as to whether it is at least as likely as not that the osteoarthritis of the right hip is related to the August 1975 complaint of right hip pain and an incident where the Veteran injured his low back attempting to keep a heavy fuel drum from falling. The same VA examiner that provided the December 2020 and January 2021 opinions stated that per the directive relative to the thirty-seven visits that he should accept and apply that "there is no evidence that the Veteran was treated more than one time in August 1975," he must conclude that without evidence of right hip injury and treatment during military service while the Veteran was in Vietnam, it is less likely as not (less than 50 percent) that the osteoarthritis of the right hip is related to the Veteran's military service. Here, the Board finds that the most recent addendum provided in March 2021 is inadequate as the RO gave inaccurate instructions to the VA examiner. Although the Veteran's STRs do not document the thirty-seven treatments of the Veteran's right hip, he is competent to report the treatments that occurred during service. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds that the Veteran's assertions regarding his in-service treatment are considered competent and credible lay evidence of such treatment. Additionally, the April 2019 JMPR noted that the Veteran's medical history, to include the reported thirty-seven in-service treatments to the right hip was inadequately explained when the examiner found that the Veteran did not have any complaints relating to his right hip while in service and was inconsistent with the Veteran's medical history. Therefore, the RO provided inaccurate instructions for the VA examiner in rendering the March 2021 addendum opinion and a medical opinion based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). In contrast, the December 2020 and January 2021 examiner provided a probative medical opinion based on review of the Veteran's claim file, their knowledge and skill in analyzing the data, and the medical conclusion that they reached. The physician considered the lay statements of the Veteran, cited to relevant medical literature, and his rationale is clear and consistent with the evidence available. The Board therefore finds the VA physician's December 2020 and January 2021 opinions to be highly probative medical evidence in favor of the Veteran's claim. The medical opinions were made with awareness of the Veteran's history and is supported by a thorough rationale with careful citation to the Veteran's medical records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). As such, the Board finds the Veteran's right hip osteoarthritis is related to service. In reaching this conclusion, the Board has reviewed the available medical opinions, lay statements, and his medical history. Accordingly, after resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for osteoarthritis of the right hip is warranted. 38 U.S.C. § 5107(b). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, Associate 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.