Citation Nr: 22019072 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-00 323A DATE: March 31, 2022 REMANDED Entitlement to service connection for left hip arthritis, to include as secondary to the service-connected right knee disability, is remanded. Entitlement to service connection for right hip arthritis, to include as secondary to the service-connected right knee disability, is remanded. Entitlement to service connection for a groin disability, to include as secondary to bilateral hip arthritis and/or the service-connected right knee disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Navy from August 1978 to July 1979 and from May 1983 to June 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2021, the Veteran testified at a virtual teleconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. 1. Entitlement to service connection for left hip arthritis, to include as secondary to the service-connected right knee disability, is remanded. 2. Entitlement to service connection for right hip arthritis, to include as secondary to the service-connected right knee disability, is remanded. 3. Entitlement to service connection for a groin disability, to include as secondary to bilateral hip arthritis and/or the service-connected right knee disability, is remanded. The Veteran asserts that his left and right hip disorders were caused or aggravated by his service-connected right knee pathology, including as due to an altered gait pattern due to his right knee disability and/or as the progression of the service-connected arthritic pathology of his bilateral knees and lumbar spine. See, e.g., October 2021 Board Hearing Transcript. See also 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (stating that establishing secondary service connection requires evidence showing that a current disability was caused or aggravated by a service-connected disability). Although the Veteran was provided a VA examination and medical opinion to determine the nature and likely etiology of his claimed bilateral hip condition, the Board finds that the VA examiner's opinion is inadequate to decide the claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In particular, in finding against a relationship between the Veteran's current bilateral hip disability and his service-connected right knee disorder, the examining VA clinician stated that she was unable to "opine with at least 50% confidence that the veteran's bilateral hip [osteoarthritis] is only the result of" the Veteran's service-connected right knee disability. See June 2014 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Further, as to aggravation, the VA examiner's negative determination was based on the lack of "objective medical evidence" establishing "the bilateral hip status prior to the [Veteran's] right [total knee replacement]," in order to determine whether the hip condition "was aggravated after the right [total knee replacement]." See id. The rationale put forth by the VA examiner is insufficient for several reasons. First, as to whether the hip disability was caused by the Veteran's right knee disorder, the June 2014 VA examiner demanded a more stringent evidentiary standard than the law requires, premising the negative determination upon the lack of evidence establishing that the right knee condition was the sole cause of the hip pathology. See id. Notably, there is no requirement that the service-connected disease be the sole cause of the disability, only that the disability be proximately due to or the result of the service-connected disease. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. Additionally, regarding whether the Veteran's bilateral hip disability was aggravated by his service-connected right knee disorder, the rationale put forth by the June 2014 VA examiner suggests that she provided a negative determination because she was unable to offer an opinion regarding the question of aggravation without resorting to speculation. However, the inability to offer an opinion is not a sufficient basis for a negative opinion. Moreover, the VA examiner did not address the Veteran's lay assertions regarding the effect of his altered gait pattern due to his right knee pathology on his bilateral hip condition. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (reflecting that, when an examination report fails to address lay evidence, and the Board does not find the Veteran not credible or not competent to offer that evidence, the proper remedy is to obtain a new examination). Accordingly, because the June 2014 VA examination and opinion are inadequate, remand is required to afford the Veteran a new VA examination and opinion. See id.; Barr, 21 Vet. App. at 312. Additionally, considering the Veteran's assertion that his groin pain is secondary to his bilateral hip pathology, it is intertwined with his claims for service connection for left and right hip disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 4. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. 5. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities, is remanded. The Veteran also asserts entitlement to service connection for headaches and a psychiatric disorder, including a sleep pathology, contending that these conditions are related to his orthopedic disabilities, including his service-connected right knee, left knee, and low back disorders. See October 2021 Board Hearing Transcript. The Board notes that the Veteran underwent a VA mental health examination in June 2014; however, no etiological opinion was provided because the VA examiner declined to diagnose any psychiatric pathology. See June 2014 VA Mental Disorders DBQ. Moreover, the Veteran has not been provided a VA examination and opinion to determine the nature and etiology of his claimed headaches. At the October 2021 Board hearing, the Veteran testified that he was experiencing increasing mental health symptoms and sleep disruption, and further described the nature and extent of his headaches. See October 2021 Board Hearing Transcript. Additionally, he related his mental health complaints and headaches to the pain and additional symptoms caused by his various orthopedic disorders. See id. See also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In light of the Veteran's competent reports concerning his increasing psychiatric symptoms and headaches, given his suggestion that these conditions are related to his service-connected orthopedic conditions, and considering the lack of evidence necessary to adjudicate the claims, the Board finds that VA examinations/medical opinions are required to determine whether the Veteran has a psychiatric disorder and/or headaches that are related to his service-connected disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) (reflecting that VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service or with another service-connected disability, but the record does not contain sufficient medical evidence to decide the claim; and further finding that the threshold for determining whether the evidence indicates the current disability may be related service or another service-connected disability is a low one); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify any relevant outstanding private treatment records. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. 2. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file. 3. After completion of the above development, schedule the Veteran for an appropriate VA examination(s), with an examiner(s) other than the VA examiner who performed the June 2014 VA hip examination, if possible, to assist in determining the nature and etiology of his claimed left and right hip and groin disabilities. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a complete copy of this REMAND should be reviewed in association with the examination. The examination report must reflect that such a review was undertaken. All indicated tests and studies deemed necessary by the examiner(s) should be performed and all clinical findings reported in detail. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available medical treatment records and lay statements and testimony), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner(s) should diagnose and describe in detail all current disorders affecting the Veteran's hips and groin found to be present. As to EACH identified pathology affecting the Veteran's hips and/or groin identified on examination or diagnosed during the pendency of the claim, the examiner(s) must provide an opinion as to whether it is at least as likely as not that any diagnosed disability affecting the hips and/or groin was either (a) caused by, or (b) aggravated by any service-connected disability, to specifically include the Veteran's service-connected right knee, left knee, or back disorders and any associated gait disturbance. * For the purpose of rendering this opinion, the examiner(s) should consider and address (i) the Veteran's statements and testimony asserting that his bilateral hip and/or groin conditions are related to his altered gait pattern due to his right knee disability and/or the progression of the service-connected arthritic pathology of his bilateral knees and lumbar spine, and (ii) the medical literature submitted by the Veteran indicating that arthritis may "progress[] to involve other joints, often in a sequential fashion." See December 2021 Veteran Correspondence and Attachments. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor it as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report(s). If any examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 4. Schedule the Veteran for an appropriate VA examination(s) to assist in determining the nature and etiology of his claimed acquired psychiatric disorder and headache disability. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a complete copy of this REMAND should be reviewed in association with the examination. The examination report must reflect that such a review was undertaken. All indicated tests and studies deemed necessary by the examiner(s) should be performed and all clinical findings reported in detail. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available medical treatment records and lay statements and testimony), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner(s) should diagnose and describe in detail all current psychiatric disorders and/or headache disorders found to be present. As to EACH identified psychiatric and/or headache pathology identified on examination or diagnosed during the pendency of the claim, the examiner(s) must provide an opinion as to whether it is at least as likely as not that any such condition was either (a) caused by, or (b) aggravated by any service-connected disability, to specifically include the Veteran's service-connected right knee, left knee, or back disorders and any associated manifestations. The examiner(s) must also specifically indicate whether the Veteran has, or has had at any point during the pendency of the claim, functional impairment of earning capacity due to his reported psychiatric and/or headache symptoms, see Saunders v. Wilkie, 886 F.3d 1356, 1363-68 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity), and if so, the examiner should express an opinion as to whether it is at least as likely as not that any such impairment was either (a) caused by, or (b) aggravated by any service-connected disability, to specifically include the Veteran's service-connected right knee, left knee, or back disorders and any associated manifestations. * For the purpose of rendering these opinions, the examiner(s) should consider and address the medical literature submitted by the Veteran indicating that "[p]ain and other symptoms of osteoarthritis may lead [a person] to feel tired, have problems sleeping, and feel depressed." See December 2021 Veteran Correspondence and Attachments. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor it as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report(s). If any examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 5. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.