Citation Nr: 21032812 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 14-20 474A DATE: May 28, 2021 REMANDED Entitlement to service connection for a left hip disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the Marine Corps from June 1962 to September 1966, and in the Army form February 1978 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2012 by a Department of Veterans Affairs (VA) Regional Office. In March 2018, the Veteran and his daughter testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2018, the Board remanded the appeal for additional development and ,in February 2020, denied service connection for a left hip disorder. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted the Veteran's and the Secretary of VA's (the parties') Joint Motion for Remand (JMR), which vacated and remanded the Board's February 2020 decision for action consistent with the JMR. The claim now returns to the Board for further appellate review. Entitlement to service connection for left hip disorder. In the February 2020 decision, the Board relied on a July 2019 VA opinion that found that the Veteran's left hip disorder, diagnosed as Legg-Calves-Perthes disease, clearly and unmistakably pre-existed his entrance to both periods of active duty and was not aggravated beyond the natural progression therein. Such examiner also found that the Veteran's other left hip disorders of chronic avascular necrosis and degenerative joint disease were a progression of, or secondary to, Legg-Calves-Perthes disease. Thus, the Board denied service connection for a left hip disorder. However, the parties to the JMR found that such opinion was inadequate to decide the claim as the examiner did not address the Veteran's lay statements of having left hip pain during service and continuing thereafter; being attacked by someone who kicked him on the bottom of his left foot which pushed his leg up into his body; and the nature of his duties during service, to include climbing and jumping off from tanks, which the Veteran contends aggravated his left hip disorder. Thus, the Board finds that remand is necessary to obtain an addendum opinion that addresses such concerns. Furthermore, the parties found that the Board failed to ensure that outstanding VA treatment records from the Louisville, Kentucky, VA Medical Center (VAMC) since October 2017 were obtained. Thus, while on remand, the Agency of Original Jurisdiction (AOJ) should obtain and associate with the claims file all outstanding VA treatment records dating from October 2017 to present. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records from the Louisville, Kentucky VAMC dating from October 2017 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Return the record, to include a copy of this Remand, to the VA examiner who rendered the opinion addressing the etiology of the Veteran's left hip disorder in July 2019. If she is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, the examiner should opine whether the Veteran's Legg-Calve-Perthes disease is a congenital or developmental disease or defect. The terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. (A) If Legg-Calve-Perthes disease is a congenital or developmental defect, the examiner is to provide an opinion as to whether such defect was subject to a superimposed disease or injury during service, to include as a result of frequently jumping off tanks and/or being kicked in the leg during an alleged assault, that resulted in additional disability. If so, please identify the additional disability. (B) If Legg-Calve-Perthes disease is a congenital or developmental disease, the examiner is to provide an opinion as to whether such clearly and unmistakably pre-existed service. (i) If there is clear and unmistakable evidence that such disease pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disease did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. (ii) If there was an increase in the severity of the Veteran's disease, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. In offering such opinions, the examiner must consider and discuss the lay statements of record regarding the onset of the Veteran's left hip disorder and the continuity of symptomatology of such disorder. In particular, the examiner should address the Veteran's statements made during the March 2018 Board hearing indicating that he left hip pain during service, which continued thereafter, and his allegation that his left hip disorder was aggravated by his alleged assault of being kicked on the bottom of his left foot, which caused his left leg to be pushed up into his hip, and his in-service duties of climbing and jumping off from tanks. In this regard, if the examiner rejects the Veteran's lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark, 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.