Citation Nr: 22015340 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-08 494 DATE: March 17, 2022 REMANDED Entitlement to service connection for left hip disability is remanded. Entitlement to service connection for right hip disability is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard, including a period for active duty for training (ACDUTRA) from April 1975 to October 1975. The Veteran is service-connected for, among other disabilities, thoracolumbar spine strain with degenerative disc disease with lumbar scoliosis with degenerative arthritis (hereinafter lumbar spine disability), which confers veteran status. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In September 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 30 days for the submission of supporting evidence. The Board subsequently received additional evidentiary submissions. 1. Entitlement to service connection for left hip disability is remanded. 2. Entitlement to service connection for right hip disability is remanded. Issues 1-2. The Veteran, and his representative, contends that his disabilities stem from a November 5, 1993, to November 7, 1993, period of ACDUTRA. In this regard, the Veteran testified that during this period of ACDUTRA, he incurred in-service injury, described as a motor vehicle accident, in which, he was transferred to a hospital. In the alternative, the Veteran also contends that his disabilities are secondary to his service-connected lumbar spine disability. For reasons explained below, the Board finds that remand is necessary. 38 U.S.C. 5103A§ ; 38 C.F.R. § 3.159(c). Initially, the Board notes that active military, naval, air, or space service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474 (1991). However, a claimant whose claim is based on a period of ACDUTRA is not entitled to the presumption of service connection. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Turning to the evidence, the Board observes that the record reveals competent evidence of a current disability or persistent or recurrent symptoms of a disability. In this regard, VA and private treatment records reflect complaints of hip discomfort and pain. It is noted that even without an underlying diagnosis, symptoms can still constitute a current disability, for VA compensation purposes, if it reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Further, at the Board hearing, the Veteran testified that he was diagnosed with osteoarthritis of the hips. See Hearing Transcript at 7 (September 2021). The Board observes that lay evidence can be competent and sufficient to establish a diagnosis when a layperson is reporting a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board, thus, finds competent evidence of a current disability or persistent or recurrent symptoms of a disability. Second, the record reflects competent, credible evidence of in-service injury, described as a motor vehicle accident during the November 5, 1993, to November 7, 1993, period of ACDUTRA. In this regard, the Veteran competently and credibly testified to in-service injury, in which, he was involved in a motor vehicle accident during that period of ACDUTRA. The Veteran's report of in-service injury is further corroborated by a November 1993 DA Form 2173 (Statement of Medical Examination and Duty Status) that shows he was on ACDUTRA at the time of the motor vehicle accident. The Board therefore finds competent, credible evidence of in-service injury, described as a motor vehicle accident during the November 5, 1993, to November 7, 1993, period of ACDUTRA. VA examination report, dated in December 2015, reflects the conclusion that the Veteran does not have a current bilateral hip disability. Corresponding VA medical opinion, also dated in December 2015, notes that the clinician found no documented hip condition and that the Veteran did not report complaints of a hip problem. The Board finds the December 2015 VA medical evidence to be inadequate for adjudicative purposes. Here, the examination report does not reflect that the clinician considered that pain with functional impairment may be considered a disability for VA purposes. Saunders, 886 F.3d 1356. In this regard, VA and private treatment records show that the Veteran has complained of hip discomfort and pain. Furthermore, at the Board hearing, the Veteran testified to experiencing loss of range of motion or use during periods of prolong walking or sitting. See Hearing Transcript at 5 (September 2021). The Veteran additionally testified to being diagnosed with bilateral hip osteoarthritis. Id. at 7. The examination report, however, does not reveal that diagnostic testing was conducted to rule-out or confirm arthritis; or that the clinician considered the Veteran's reports of pain with functional impairment. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). Accordingly, remand is warranted for an adequate VA examination and medical opinion. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lastly, the Board observes that the Veteran submitted private nexus evidence, dated in January 2019 and September 2019, reflecting the following conclusion: In my opinion, these findings reveal a chronic spinal condition that will never permanently resolve, and is more than likely progressive in nature. I also believe that this condition is more likely than not, directly related to the motor vehicle accident of 1993 while in military service. The Board finds the private nexus evidence is inadequate to support the claims. Specifically, the evidence is inadequate because it does not reveal a conclusion on whether any right or left hip disability is related to the Veteran's period of ACDUTRA, or secondary to service-connected lumbar spine disability. Indeed, a review of the opinion indicates that the clinician specifically focused the opinions' findings and conclusion to the Veteran's "chronic spinal condition." Accordingly, the Board finds the private nexus evidence is inadequate to support the claims. Aside from the above explicit finding, in remanding these matters, the Board makes no further findings, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers (to include those authorized through VA's "Veterans Choice Program") seen for signs and symptoms or right and/or left hip disability, to include from Shamokin Area Community Hospital. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from November 2021 to the Present. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any left or right hip disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any hip disability. NOTE (1): Pain that causes functional impairment is a disability for VA compensation purposes, even if there is no underlying diagnosis. NOTE (2): The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (3): A negative medical opinion may not dismiss the Veteran's competent report of symptoms without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. If the Veteran is diagnosed with any chronic hip disability, the clinician must opine on: Direct Service Connection (a) Whether any hip disability at least as likely as not (1) began during the November 5, 1993, to November 7, 1993, period of ACDUTRA, or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his disability stems from conceded in-service injury, described as a motor vehicle accident during the November 5, 1993, to November 7, 1993, period of ACDUTRA. Explain. Secondary Service Connection (b) Whether any hip disability is at least as likely as not (1) proximately due to service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by service-connected lumbar spine disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.