Citation Nr: 21042636 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-37 135 DATE: July 13, 2021 REMANDED Entitlement to service connection for restless leg is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right hip disability to include as secondary to service-connected low back disability is remanded. Entitlement to service connection for a left hip disability to include as secondary to service-connected low back disability is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Army from February 1977 to February 1980, March 1982 to April 1996, and April 1996 to September 2010 to include Reserve service. This matter is on appeal from an August 2014 rating decision. The Veteran was afforded a September 2019 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in February 2020 and February 2021 for further development. Unfortunately, the Board finds that remand is warranted for additional development. In a February 2021 Board decision regarding a right hip disability, the Board requested an addendum opinion to clarify the Veteran's claimed right hip disability under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) and whether there was functional impairment. Regarding the left hip disability, the February 2021 Board decision found the September 2020 VA medical opinion inadequate as it did not consider the Veteran's reported pain in the hips in service treatment records (STRs) and statements and testimony of suffering an injury to his hips during a physical training run in service. The Board decision also noted that an aggravation opinion was not provided by the September 2020 examiner who stated that one could not be provided at this time. Regarding the right knee, the February 2021 Board decision found the September 2020 VA medical opinion did not consider the September 2019 Veteran's testimony of a number of falls in service while running on cobblestones and ice in 1977 and another fall in 1984 during physical training. At the September 2020 VA examination, the Veteran also reported a 1979 motor vehicle accident where he stated that his knees hit the dashboard; the September 2020 VA medical opinion also did not address this report. The February 2021 Board decision requested an addendum opinion to consider the Veteran's statements. Regarding the Veteran's claimed restless leg syndrome, the February 2021 Board decision found the September 2020 VA medical opinion provided rationale for secondary service connection but "failed to make any selection for answers to questions for direct and secondary service connection opinions." The February 2021 Board decision remanded for an addendum opinion. The Board notes that the February 2021 Board decision provided remand instructions that the examiner was specifically asked to address the Veteran's testimony of falls in service in rendering their opinions. In May 2021, addendum opinions were provided. Regarding the left hip disability, the examiner found it was less likely than not that the Veteran's claimed disability was related to service or caused by his service-connected low back disability. The examiner explained that the disability was secondary to joint aging and chronic overuse of the left hip. However, the examiner does not provide an aggravation opinion or identify a baseline. Regarding the right hip disability, the examiner opined the right hip disability was not caused by the service-connected low back disability; found there was insufficient medical evidence to establish a baseline; and opined there was no aggravation by the service-connected low back disability. The examiner does not address or reconcile the conflicting findings in the September 2020 VA examination of no right hip disability diagnosis or provide an opinion as to whether the Veteran's reported symptoms of pain in his right hips in the testimony and VA examination rose to the level of functional impairment in line with Saunders. Regarding the Veteran's claimed restless legs, the May 2021 opinion provided a negative etiology regarding to service or because of service-connected low back disability, however the examiner did not provide an aggravation opinion or identify a baseline. The opinion also does not discuss the Veteran's testimony that his restless legs may be due to his knee or hip and also stating that following his second fall in 1984 he began feeling weakness in his legs; or in the September 2020 VA examination he described having an "anxious feeling in his legs" arising in 1991 due to doing a lot of driving during service as a recruiter. Regarding the Veteran's right knee, the May 2021 VA examiner opined that it was less likely than not that the Veteran's right knee was related to service. The examiner noted in the evidence the Veteran's reported falls in 1977 and 1984 and opined that there was no medical evidence of ongoing acute or chronic treatment for the right knee. The examiner stated that "facts and evidence" were reviewed and that the right knee condition was self-limited and resolved prior to the Veteran's separation. However, the examiner does not address the September 2020 VA examiner findings where the Veteran' reported suffering a motor vehicle accidence in 1979 where his knees hit the dashboard. The Board notes that review of the Veteran's STRs show a May 1978 report of an injury to the legs due to a car accident 5 days ago and the Veteran complained of pain to the right leg and ankle and a January 1988 complaint of right knee pain due to a fall; the examiner also does not address these records. Under these circumstances, the Board finds the May 2021 opinions inadequate and that another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the February 2021 Board remand instructions is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Return the claims file to the VA examiner who provided the May 2021 opinions, if available, for an addendum opinion. If that examiner is not available, the claims file should be provided to another physician to obtain the requested opinion. The need for another examination is left to the discretion of the examiner providing the opinion. After review of the claims file, the examiner is asked to respond to the following: (a.) Identify each current right hip disability, which may include pain alone that rises to the level of functional impairment. If either disability existed during the appeal period but has resolved, this should be made clear. The examiner should record in detail the Veteran's history of his right hip disability and how they affect his ability to function. (b.) For each right hip disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service? If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment. (c.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's left hip disability arose in service or is etiologically related to his military service? (d.) Is it at least as likely as not (50 percent probability or more) that the Veteran's left hip disability is due to his service-connected low back disability? (e.) Is it at least as likely as not (50 percent probability or more) that the Veteran's left hip disability is aggravated by his service-connected low back disability? "Aggravation" is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. If a baseline cannot be established, the examiner should explain why. (f.) Regarding the right and left hip disabilities, the examiner should specifically address and reconcile the findings made in the September 2020 VA examination regarding the Veteran's reported symptoms and the examiner's findings; the December 2004, January 2005, May 2006 and October 2006 report of pain to the right hip; September 2019 hearing testimony that his hips began hurting the same time he hurt his back in service in 1988 to 1989. (g.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's right knee disability arose in service or is etiologically related to his military service? (h.) Regarding the right knee disability, the examiner is asked to specifically address the Veteran's September 2019 testimony of suffering falls in 1977 while running on cobblestones and ice in Germany as well as a second fall in 1984 during physical training; the September 2020 VA examination findings where the Veteran reported suffering a 1979 motor vehicle accident injuring both knees; service treatment records of a May 1978 injury to the legs due to a car accident and a January 1988 complaint for right knee pain. (i.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's claimed restless legs arose in service or is etiologically related to his military service? (j.) Is it at least as likely as not (50 percent probability or more) that the Veteran's restless legs is due to his service-connected disabilities? (k.) Is it at least as likely as not (50 percent probability or more) that the Veteran's claimed restless legs is aggravated by his service-connected disabilities? "Aggravation" is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. If a baseline cannot be established, the examiner should explain why (l.) Regarding the restless legs, the examiner is asked to specifically address the Veteran's September 2019 testimony that he felt the restless legs was due to his knees and hips as well as felt weakness in his legs following his second fall in1984, and the September 2020 VA examination report where the Veteran stated that he felt an anxious feeling in his legs arising 1991 due to all the driving he did as a recruiter. (m.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (n.) The examiner should provide a complete rationale for any opinions provided with discussion of the facts particular to the Veteran's case. If the examiner is unable to provide any opinion request, then the examiner should state so and why. (o.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.