Citation Nr: 22010586 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 15-22 400 DATE: February 24, 2022 REMANDED A claim of entitlement to service connection for a lumbar spine disability, to include minimal anterior osteophyte and/or degenerative disc disease of the lumbar spine, is remanded. A claim of entitlement to service connection for a bilateral hip disability, to include degenerative joint disease of the bilateral hips, is remanded. A claim of entitlement to service connection for a bilateral foot disability, to include residuals of a puncture wound of the bottom of either foot, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from December 1984 to April 1987. SERVICE CONNECTION FOR A BILATERAL HIP DISABILITY, A LUMBAR SPINE DISABILITY, AND A BILATERAL FOOT DISABILITY In September 2018, the Veteran testified before the undersigned Veterans Law Judge in support of six claims. Thereafter, the Veteran's appeal was remanded for additional development. See June 2019 Board decision. After the development was completed, the Veteran was granted service connection for three of his six claims: a left knee disability, a right knee disability, and a left ankle disability. See April 2020 rating decision. His remaining claims of entitlement to service connection for a back disability, a bilateral hip disability, and a bilateral foot disability were recertified to the Board. See April 2020 supplemental statement of the case. Thereafter, in an August 11, 2020 decision, the Board denied the Veteran's three claims. For the record, one of the recertified claims was initially characterized as a claim of entitlement to service connection for a left foot disability, to include residuals of a left foot puncture wound of the bottom of the left foot. In reevaluating the Veteran's remaining claims in August 2020, the Board found that there was significant conflicting evidence that the foot the Veteran punctured in service was in fact the right foot and not the left foot. Given this contradiction, the Board discussed both the left and right feet in its re-review of the Veteran's claim. See August 11, 2020 Board decision. The issue was recharacterized (as noted above) as a claim of entitlement to service connection for a bilateral foot disability, to include residuals of a puncture wound of the bottom of either foot. The Veteran appealed the Board's denial of his claims to the United States Court of Appeals for Veterans Claims (Court). In September 2021, based on a Joint Motion for Remand (JMR), the Court vacated the August 11, 2020 Board decision after finding the Board failed to ensure satisfaction of VA's duty to assist prior to the adjudication of Veteran's back and hip claims, and failed to ensure substantial compliance with directives set forth in its previous June 2019 remand. The Court remanded the issues to the Board for actions consistent with the August 2021 JMR. Regarding the Veteran's back and bilateral hip disability claims, the Court found the Board erred when it relied upon two February 2020 negative nexus medical opinions that contained inconsistent and confusing rationales. In essence, the February 2020 VA examiner opined that the etiology of the Veteran's back and hip conditions were likely due to overuse following active duty. The examiner came to these conclusions after considering evidence of the Veteran's participation in competitive basketball in service with evidence of post-service activities that included waiter duties and golfing. The examiner did not provide any explanation for why she believed Veteran's back condition was more likely due to overuse after service as a waiter and golfer rather than from repetitive motion from playing basketball in service. In terms of the Veteran's hip claim, the examiner also failed to provide any reasoning or explanation for determining that the Veteran's hips deteriorated due to overuse as a waiter and golfer following service, but not due to service, to include playing competitive basketball. The Court determined that these failures warranted a vacatur and remand of the Board's August 2020 decision for the purpose of affording the Veteran new back and hip medical examinations. In addition to the foregoing, the Court held - in relation to all three issues on appeal - that the Board failed to ensure the Agency of Original Jurisdiction's (AOJ) compliance with directives set forth in the Board's prior June 2019 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Specifically, the Board noted in its remand that the claims file contained a September 2018 letter from Dr. V.H. in which Dr. V.H. reported that she had conducted a medical review for the Veteran, diagnosed him with disabilities of the low back, bilateral hips, and left foot and provided a positive nexus opinion on the Veteran's behalf. In doing so, Dr. V.H. wrote that in addition to her medical treatment of the Veteran, the Veteran had been treated by "neurosurgeons, neurologists, and orthopedic specialists for over twenty years." She also indicated that other "attending physicians and specialists" were involved in providing the Veteran's medical review and that they (the "attending physicians and specialists") found it highly likely that the Veteran's disabilities were most likely caused by the strenuous nature of his military service. Dr. V.H. did not provide names or information for the other "attending physicians and specialists" in her letter. In its June 2019 remand, the Board directed the AOJ to request records and information from Dr. V.H. about the Veteran's other medical providers and the medical professionals who participated in the Veteran's September 2018 medical review. The claims file includes an October 2019 letter from the AOJ to the Veteran requesting that he provide the names, addresses and any other pertinent information he might have as to his treating "neurosurgeons, neurologists and orthopedic specialists," in addition to providing information about the "attending physicians and specialists" that opined that his "current disabilities are related to and most likely caused by" his military service. Thereafter, the AOJ attempted to obtain records from Dr. V.H. on two separate occasions. The AOJ's efforts to contact Dr. V.H. are recorded in a December 2019 Report of Contact. However, the December 2019 Report of Contact does not show that the AOJ asked Dr. V.H. for the medical professionals' information sought by the Board's in its July 2019 remand. Unfortunately, the AOJ's actual request letters faxed to Dr. V.H. are not contained in the claims file. On appeal, the Court found that the AOJ failed to specifically request the names, addresses and other pertinent information for the specialists Dr. V.H. referenced in her 2018 letter, in violation of Stegall v. West, supra. Due to this error, the Court vacated the Board's August 11, 2020 Board decision and remanded the appeal for the Board to ensure substantial compliance with the June 2019 remand directives. Therefore, the matters are REMANDED for the following actions: 1. After reviewing this remand in full, ask the Veteran to complete a new VA Form 21-4142 for the medical records from Dr. V.H. and her medical practice. Make two requests for the authorized records from Dr. V.H. unless it is clear after the first request that a second request would be futile. In requesting the medical records from Dr. V.H., request that she also provide the names, addresses, and any other pertinent information she may have as to the treating "neurosurgeons, neurologists, and orthopedic specialists" she referenced in her September 2018 letter; in addition to the "attending physicians and specialists" that opined the Veteran's "current disabilities are related to and most likely caused by" his military service. If Dr. V.H. provides this information, the RO should ask the Veteran to sign the appropriate releases and obtain copies of any available records. 2. After competition of directive 1, schedule the Veteran for an examination by an appropriate medical professional to determine the nature and etiology of any disabilities of lumbar spine and his bilateral hips (including functional impairment). The examiner must review the claims file. Subsequently, the examiner should opine whether either of the claimed disabilities are at least as likely as not related to an in-service injury, event, or disease, including injuries reportedly sustained (as discussed in the lay statements and lay testimony of record) during his participation in competitive basketball while serving in the United States Air Force. The examiner should also be asked to review the September 2018 letter from Dr. V.H. in conjunction with the other post-service medical evidence in the claims file. In doing so, the examiner should reconcile any contradictions in these records, to include the different diagnoses that appear to be have been made by Dr. V.H. and other earlier medical providers. A rationale for any opinion provided by the examiner must be included in his/her examination report. 3. After ensuring compliance with the above-referenced directives and undertaking any additional development deemed warranted, readjudicate the Veteran's claims on appeal. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Talpins 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.