Citation Nr: 22016328 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-18 724 DATE: March 21, 2022 REMANDED Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served honorably, including active duty service from September 1992 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, the Board remanded the matter in October 2021 to provide new medical opinions. Unfortunately, further remand is required for all three claims. First, while the directed examinations and opinions were provided in November 2021, in a February 2022 informal hearing presentation (IHP) the Veteran's representative contested the qualifications of the nurse practitioner who conducted the November 2021 examinations and requested that VA provide the Veteran and her representative with the clinician's curriculum vitae and other information regarding her qualifications. Where such a request is made, the Board must remand the matter to allow the agency of original jurisdiction to comply with the request. See Francway v. Wilkie, 940 F.3d 1304, 1308 (2019). Additionally, for all three claims, remand is required to provide new opinions. Regarding the claim for a left hip disorder, a new C&P opinion was obtained in December 2021. The clinician, after reviewing the Veteran's records, opined that the Veteran's left hip condition is less likely than not directly due to service on the ground that "there is a lack of supporting objective documentation to substantiate a chronic condition manifesting from service." The examiner did not discuss, however, the Veteran's report on her September 1997 separation report of medical history of a "h[istory] of trouble in" both of her hips. Additionally, there are VA treatment records in December 2005 and October 2007 showing the Veteran sought treatment for pain in her left hip leading up to the time of her claim. Moreover, there was no discussion of the Veteran's own competent reports, to include her description at a September 2010 C&P examination that she had a gradual onset of bilateral hip pain since 1994, the symptoms of which had diminished but which had manifested episodically ever since that time, with an increasing intensity and frequency of exacerbations as the years went on. The Veteran is competent to describe the history of her condition, and a clinician's opinion is inadequate where it relies solely on lack of objective medical documentation to the exclusion of competent lay evidence. Dalton v. Nicholson, 21 Vet. App. 23, 39, 40 (2007). Thus, a new opinion must be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A new opinion is also needed for the left hip to ensure compliance with the Board's prior decision, which directed for an opinion regarding any secondary relationship between the Veteran's left-hip condition and her service-connected conditions. While the December 2021 clinician offered an opinion addressing whether the Veteran's left-hip condition is proximately due to her service-connected right hip trochanteric bursitis, the clinician did not opine whether the left-hip condition is aggravated by the trochanteric bursitis. The Board will direct for an opinion that addresses this potential etiology. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Dyment v. West, 13 Vet. App. 141, 14647 (1999). Regarding the claim for a right knee disorder, a new C&P examination was provided in November 2021, and the examiner opined that a direct connection to active-duty service was less likely than not, stating that "[a]lthough veteran complaints [sic] of right knee pain during service, the injury, meniscal tear and degenerative arthritis[,] were noted in 2016, more then [sic] 20 years after service. There are no documents stating chronicity of care after service for right knee." Of record, however, are VA treatment records showing complaints for the right knee leading up to the date of the service-connection claim in 2010, to include in February 2004, October 2007, November 2008, and continuing into the 2010s. Additionally, of record is a January 2007 physical profile during the Veteran's Reserve service for chronic bilateral knee pain. Furthermore, the Veteran detailed the nature of her condition at a September 2010 C&P examination, describing that she had a gradual onset of bilateral knee pain since 1997, the symptoms of which had diminished but which had manifested episodically ever since that time, with an increasing intensity and frequency of exacerbations as the years went on. Given this evidence showing the Veteran experienced problems with and sought treatment for her right knee before 2016, remand is required to ensure that the evidence is considered in the rendering of the etiology opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); Barr, 21 Vet. App. at 311. On remand of the right-knee claim, the Board will also direct for an opinion regarding whether the Veteran's right-knee conditions are due to obesity caused by her service-connected disabilities. See generally 84 Fed. Reg. 13991 (Aug. 6, 2018) (providing that obesity can qualify as an "intermediate step" between a service-connected disability and a current disability if certain elements are established). In this case, the authors of October 2020 and May 2021 C&P opinions remarked in their etiology rationale regarding the right knee that "Veteran was obese," and of record is a statement from the Veteran alleging that she has gained weight excessively due to her inability to perform exercise due to her service-connected disabilities. Given this evidence, the theory of obesity as an intermediate step for service connection has been reasonably raised by the record, warranting a medical opinion that pursues this indication of a potential connection. Garner v. Tran, 33 Vet. App. 241, 248-49 (2021) (holding that obesity as an intermediate step is raised where the record includes lay statements by a veteran attributing weight gain or obesity to a service-connected disability); McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4). Regarding the claim for a lumbar spine disorder, a new C&P examination was provided in November 2021, after which the examiner opined that the Veteran's lumbar spine condition is less likely than not connected to service because "[t]here is no evidence of chronicity of care after service. . . . [H]er diagnosis of mild DJD was in 2007 which is 10 years after service." VA treatment records, however, show that the Veteran sought treatment for her back well before this time: In May 25, 1999, the Veteran's back pain, found at that time to have resolved with therapy, was stated to be "[m]ore than likely secondary to knee pain and resultant biomechanics." The Veteran presented again with back pain in January 2004, July 2005, December 2005, and in June 2007 she characterized her back pain as having been chronic. Remand is required for the examiner's consideration of this evidence of problems with and treatment sought for the lumbar spine before 2007. Nieves-Rodriguez, 22 Vet. App. at 302; Barr, 21 Vet. App. at 311. Finally, for the lumbar spine claim, the November 2021 clinician was asked to address whether the condition may be proximately due to service-connected disability, but no opinion was requested whether the condition may be aggravated by service-connected conditions. Once VA provides an examination when developing a service-connection claim, it must be ensured that an adequate one is provided. Barr, 21 Vet. App. at 311. In this case, once the issue of secondary service connection was raised, an adequate opinion must address both secondary proximate causation and secondary aggravation. See El-Amin, 26 Vet. App. 137, 140-41; see generally 38 C.F.R. § 3.310(a). Particularly in light of the aforementioned evidence that the Veteran historically experienced lumbar spine problems opined to have been secondary to knee pain, opinions regarding any potential secondary aggravation should be obtained. Id. Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran and her representative the curriculum vitae and other information about the qualifications of the author of the November 2021 C&P examinations, A.K., Nurse Practitioner. 2. Obtain an opinion regarding the etiology of the Veteran's left hip condition. It is left to the discretion of the clinician whether a new examination is required. For any left hip condition present at any time since 2010, the clinician must opine on both of the following questions: (a) Is any left hip condition at least as likely as not (meaning an approximate balance of positive and negative evidence) related to the Veteran's service? The clinician must consider and discuss (i) the Veteran's report at her separation from active duty in September 1997 that she had trouble in the left hip; (ii) VA treatment records showing the Veteran sought treatment for left hip pain in December 2005 and October 2007; and (iii) the Veteran's description at the September 2010 C&P examination of the course of her condition, relating that she had a gradual onset of bilateral hip pain since 1994, the symptoms of which had diminished but which had manifested episodically ever since that time, with an increasing intensity and frequency of exacerbations as the years went on. (b) Is any left hip condition at least as likely as not (meaning an approximate balance of positive and negative evidence) aggravated (worsened beyond the normal course of the disease) by her service-connected right hip trochanteric bursitis? 3. Obtain an opinion regarding the etiology of the Veteran's right knee conditions. It is left to the discretion of the clinician whether a new examination is required. For any right knee condition present at any time since 2010, the clinician must opine on all of the following questions: (a) Is any right knee condition at least as likely as not (meaning an approximate balance of positive and negative evidence) related to the Veteran's service? The examiner must consider and discuss (i) VA treatment records (to include in February 2004, October 2007, November 2008) show the Veteran was experiencing right knee pain; (ii) during the Veteran's Reserve service, a January 2007 physical profile listed chronic bilateral knee pain as the medical condition justifying the profile; and, (iii) the Veteran's description at the September 2010 C&P examination of the course of her condition, relating that she had a gradual onset of bilateral knee pain since 1997, the symptoms of which had diminished but which had manifested episodically ever since that time, with an increasing intensity and frequency of exacerbations as the years went on. (b)(i) Is it at least as likely as not that (meaning an approximate balance of positive and negative evidence) the Veteran's service-connected disabilities, by limiting her ability to be physically active, caused her to become obese? Consider the Veteran's statement that she gained weight excessively due to her inability to exercise. (b)(ii) Is it at least as likely as not (meaning an approximate balance of positive and negative evidence) that the Veteran's obesity was a substantial factor in causing any right knee condition? Consider and discuss the remarks in the October 2020 and May 2021 C&P opinions regarding the etiology of the right knee condition that the Veteran was obese. (b)(iii) Is it at least as likely as not (meaning an approximate balance of positive and negative evidence) that the respective right knee condition would not have occurred but for obesity? Consider and discuss the remarks in the October 2020 and May 2021 C&P opinions regarding the etiology of the right knee condition that the Veteran was obese. 4. Obtain an opinion regarding the etiology of the Veteran's lumbar spine condition. It is left to the discretion of the clinician whether a new examination is required. For any lumbar spine condition present at any time since 2010, the clinician must opine on both of the following questions: (a) Is any lumbar spine condition at least as likely as not (meaning an approximate balance of positive and negative evidence) related to the Veteran's service, to include an in-service injury reported by the Veteran in which she hurt her back doing sit-ups during a physical fitness test (which caused her to be unable to pass that particular test)? The examiner must consider and discuss (i) VA treatment records (to include in May 1999, January 2004, July 2005, December 2005, and June 2007) show the Veteran was experiencing lumbar pain, and (ii) the Veteran's description at the September 2010 C&P examination of the course of her condition, relating that she had a gradual onset of lumbar pain since 1996, the symptoms of which had diminished but which had manifested episodically ever since that time, with an increasing intensity and frequency of exacerbations as the years went on. (b) Is any lumbar spine condition at least as likely as not (meaning an approximate balance of positive and negative evidence) aggravated (worsened beyond the normal course of the disease) by her service-connected (1) left knee disability, (2) groin strain, (3) right hip trochanteric bursitis, or (4) right foot disability, or by her presently non-service-connected (5) left hip condition or (6) right knee condition? In rendering this opinion, the examiner must consider and discuss (i) that a May 25, 1999 VA treatment record found back pain, considered resolved at that time, "[m]ore than likely secondary to knee pain and resultant biomechanics," and (ii) the cited article in the February 2022 written brief presentation, summarized as a showing "[p]eer-reviewed studies published in the Journal of Bone and Joint Surgery have shown that patients with severe low-back pain had significantly more complaints in the lower limbs (such as knee pain and foot conditions), sought more medical care and treatment for the low-back pain, and lost more time from work for this reason." K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.