Citation Nr: 22044893 Decision Date: 08/08/22 Archive Date: 08/08/22 DOCKET NO. 14-11 761 DATE: August 8, 2022 REMANDED Entitlement to service connection for a left hip disability, including as secondary to service connected back, right knee and right hip disabilities, is remanded. Entitlement to an evaluation in excess of 20 percent (excepting two periods of temporary total disability due to convalescence) for a right shoulder disability is remanded. Entitlement to an evaluation in excess of 10 percent prior to December 7, 2010, and in excess of 20 percent thereafter for a lumbar spine disability is remanded. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the right lower extremity is remanded. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to September 15, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from October 1985 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011 and September 2011 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2016. This case was previously before the Board in March 2016, December 2017, June 2018, March 2020, and August 2021 when it was remanded for development. 1. Entitlement to service connection for a left hip disability, including as secondary to service connected back, right knee and right hip disabilities, is remanded. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran seeks entitlement to service connection for a left hip disability. In August 2021, the Board remanded the claim to obtain an additional examination and etiology opinion. The examiner was directed to determine whether any left hip disability was present over the appeal period and to opine whether any such disability was directly related to the Veteran's active service or proximately due to or aggravated by his service-connected back, lower extremity radiculopathy, right hip, or right knee disabilities, including any alteration of gait due to these conditions. A VA hip and thigh conditions examination was provided in April 2022. The examiner diagnosed left hip strain. She opined the condition was less likely than not directly related to the Veteran's active service. In support, she stated the medical evidence documented reports of bilateral hip pain 17 years after the Veteran separated from active service and the Veteran believed his left hip condition was due to his knee disability. In addition, she incorrectly stated service connection was not established for a right hip disability. The etiology opinion for direct service connection is not based on an accurate evaluation of the Veteran's medical history. It is insufficient to determine the claim. See Stefl, supra; see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (indicating an opinion based on an inaccurate factual history is of limited probative value). The examiner also opined left hip strain was less likely than not secondary to the Veteran's back, lower extremity radiculopathy, right hip, and right knee conditions. She observed that the left hip was a "separate entity" from the service-connected body parts, and she stated that that the left hip was not aggravated by any alteration of gait. No additional supporting statements were provided. While the left hip is undoubtedly a separate entity from the Veteran's service-connected disabilities these body parts interact as the Veteran walks and moves to perform daily tasks. The examiner did not explain how and why the left hip would be unaffected by disability in the Veteran's back and lower extremities. Without additional explanation, this opinion is inadequate. See Stefl, supra. 2. Entitlement to an evaluation in excess of 20 percent (excepting two periods of temporary total disability due to convalescence) for a right shoulder disability is remanded. 3. Entitlement to an evaluation in excess of 10 percent prior to December 7, 2010, and in excess of 20 percent thereafter for a lumbar spine disability is remanded. 4. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the right lower extremity is remanded. 5. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the left lower extremity is remanded. The Veteran has been referred for private chiropractic and interventional pain treatment for his low back condition through the VA Choice and Community Care programs. VA treatment records note multiple referrals, including referrals in August 2016, February 2018, August 2018, February 2019, March 2019, February 2020, March 2020, and October 2020. Records of this private treatment, provided through VA programs, are not yet associated with the claims file. In June 2020, the Veteran was referred for a Community Care Consult with Mendelson Kornblum Orthopedics. In a September 2012 statement, the Veteran noted he received treatment for his shoulder disability from this provider. These VA Community Care records may be relevant to his claim for an increased right shoulder disability rating, and they are not yet associated with the claims file. The Veteran's VA Choice/Community Care records are within VA's constructive possession and are considered potentially relevant to the issues on appeal. VA has a duty to make as many requests as necessary to obtain records in the custody of a federal department or agency unless concluding they do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). A remand is required to allow VA to attempt to obtain these records. 6. Entitlement to a TDIU prior to September 15, 2017, is remanded. Where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The issue of entitlement to a TDIU is intertwined with the remanded issues discussed above. The matters are REMANDED for the following action: 1. Obtain and associate with the record copies of all non-VA treatment authorized by VA (e.g., Choice First, Veteran's Choice or Community Care programs). Document all efforts to obtain these records in the claims file. If it is determined the records do not exist or further efforts to obtain them would be futile, communicate this finding to the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left hip strain is at least as likely as not related to his active service or proximately due to his service-connected back, lower extremity radiculopathy, right hip, or right knee disabilities. Prior to providing the requested opinion, the examiner should review the entire claims file. In evaluating direct service connection, the examiner should discuss the disability benefits questionnaire and etiology opinion from Dr. M. B., a private physician, submitted in December 2016. In evaluating whether the left hip disability is proximately caused by or aggravated by any service-connected disability, the clinician should discuss the Veteran's February 2011 statement, his March 2014 statement (associated with VA Form 9), and any altered gait or other physical changes due to the service-connected disabling conditions. Merely stating the left hip is a separate body part will be deemed an insufficient rationale. The clinician is advised that aggravation and causation are distinct theories and must be addressed separately and independently of each other. (Continued on the next page) If aggravation is found, the clinician must attempt to establish a baseline level of severity of the disability prior to aggravation by the service-connected disability. If the clinician determines an additional in person examination is needed to provide the requested opinions, schedule an examination. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.