Citation Nr: 23039482 Decision Date: 07/18/23 Archive Date: 07/18/23 DOCKET NO. 19-35 036 DATE: July 18, 2023 REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from April 2010 to April 2015, with service in Afghanistan, Djibouti, and Kuwait. The Veteran had additional service in the Naval Reserve from April 2015 to August 2016. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The September 2016 rating decision included the issue of entitlement to service connection for an anxiety disorder. While the Veteran filed a Notice of Disagreement of this issue, she did not perfect the appeal in her November 2019 VA Form 9, Appeal to Board of Veterans' Appeals. Rather, she specifically limited her appeal to the issues of entitlement to service connection for a left hip disability and a lumbar spine disability. Therefore, the issue of entitlement to service connection for an anxiety disorder is not on appeal. See 38 C.F.R. § 20.202; see also AB v. Brown, 6 Vet. App. 35, 39 (1993) (a claimant may limit his appeal to particular issue(s) if he expresses a clear intent to do so). The Board observes that additional medical evidence relevant to the Veteran's claims of entitlement to service connection for a left hip disability and a lumbar spine disability was added to the claims file after the RO's adjudication in the September 2019 Statement of the Case, without a waiver of initial RO consideration. Nonetheless, because the Board is remanding the claim for further development and the entire claims file is to be reviewed by the examiner prior to rendering an opinion, there is no prejudice to the Veteran. Although further delay is regrettable, the Board finds a remand is necessary in this case to ensure due process is followed and there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a left hip disability is remanded. The Veteran asserts her left hip disability had its onset during a period of qualifying service, and that she has experienced relevant symptoms, to include pain, since that time. Specifically, she asserts that on February 6, 2016, during a period of inactive duty training (weekend drill) she suffered a "crush injury" to her left hip. See August 2016 Statement in Support of Claim. The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (2), (24); 38 C.F.R. § 3.6 (a). Initially, the Board finds a remand is warranted to verify the exact dates and nature of the Veteran's service. The Veteran enlisted in the United States Naval Reserve on December 3, 2009. The Veteran served on active duty from April 2010 to April 2015. Upon discharge, she was transferred to the Navy Reserve. See DD Form 214 Certificate of Release or Discharge from Active Duty. The Veteran was discharged from the Naval Reserve on August 2, 2016. The Agency of Original Jurisdiction (AOJ) associated a VADIR Report (VA/DoD Identity Repository) to verify the Veteran's military service. The VADIR report does not appear to accurately reflect her Naval Reserve service. See, e.g., March 2019 DPRIS Response; see also May 2017 VA Form 21-8951 (DMDC records indicate 51 training days for fiscal year 2016). Clarification is needed. In March 2019, the AOJ determined there was evidence in the Veteran's service treatment records and Joint Legacy View (JLV) records showing the Veteran was injured while with her Reserve unit in February 2016. However, because there was no LOD on file, additional development for the Veteran's service personnel records was necessary. See March 2019 Deferred Rating Decision. The Board notes here that a Line of Duty (LOD) is not required in order to find that a disability was incurred or aggravated during a period of active duty training or inactive duty training. In addition to the development ordered above, the VA has a duty to assist, which includes providing a medical examination, when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). In determining whether VA's duty to assist requires a VA examination or medical opinion, four factors are for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is competent to report events that occurred in service, and to observe symptoms such as pain. The Veteran's post-service treatment records show a diagnosis of left thigh contusion, status post crush injury, left trochanteric bursitis, as well as complaints of, and treatment for, left side pelvic/hip pain. See Lawrence and Memorial Hospital records; see also West-Haven VA Medical Center records. These records are dated just a few months after the alleged injury. The AOJ has not obtained an examination. Therefore, the Board finds that remand is warranted to obtain a VA examination to determine whether the Veteran has a left hip disability related to her service. See 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. 79. 2. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserts her lumbar spine disability had its onset during military service and that she has experienced relevant symptoms since that time. The Veteran's service treatment records note the Veteran sought treatment for generalized muscle pain in lower back, lower back pain, and left lower extremity symptoms. See March 2012 Periodic Health Assessment; February 2015 military service physical separation record; and February 2015 Report of Medical History Separation Exam. The Veteran's post-service treatment records show treatment for a lumbar spine condition, diagnosed as lower back pain and mild degenerative disc disease with mild bilateral neuroforaminal narrowing of L5-S1. See Axman Chiropractic records; see also West Haven VA Medical Center records. The AOJ has not obtained an examination. Therefore, the Board finds that remand is warranted to obtain a VA examination to determine whether the Veteran has a lumbar spine disability related to her service. See 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. 79. The matters are REMANDED for the following action: 1. Provide a memorandum identifying the exact nature and dates of the Veteran's service during February 2016, including periods of active duty, active duty training, and inactive duty training. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. A report detailing the Veteran's award of reserve retirement points WILL NOT represent compliance with this instruction. 2. After associating any newly obtained evidence with the claims file, the AOJ should schedule the Veteran for examination(s) by appropriate clinician(s) to determine the nature and etiology of her claimed disabilities. The examination report must reflect that the file was reviewed. Following a review of the entire record, the examiner is asked to address the following: (a.) Perform diagnostic testing, to include x-rays of the left hip and lumbar spine. (b.) List all diagnoses pertaining to the Veteran's (i) left hip and (ii) lumbar spine. (c.) The examiner is advised that pain resulting in functional impairment in earning capacity is considered a disability for VA purposes, even if no diagnosable condition is present. (d.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's (i) left hip disability and/or (ii) lumbar spine disability manifested in service or is otherwise causally or etiologically related to the Veteran's active military service, a verified period of active duty training, or is the result of an injury incurred during a verified period of inactive duty training. (e.) If arthritis is diagnosed, whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the condition manifested within one year of discharge from active service. The examiner's attention is directed to the following: Left Hip Disability: " The Veteran's competent lay statements regarding onset and continuity of symptomatology. (See August 2016 VA Form 21-4138 [Correspondence], and November 2019 VA Form 9 and attachment). " Lawrence & Memorial Hospital records. [Medical Treatment Record-Non-Government Facility, Receipt Date October 20, 2017] A Line of Duty (LOD) is NOT required in order to find that a disability was incurred or aggravated during a period of active duty training or inactive duty training. Lumbar Spine Disability: " The Veteran's competent lay statements regarding onset and continuity of symptomatology. (See August 2016 VA Form 21-4138 [Correspondence], and November 2019 VA Form 9 and attachment). " Relevant service treatment records, to include records of treatment for generalized muscle pain, lower back pain related to heavy lifting and wearing protective body armor, and lower back pain with radicular symptoms. (See, e.g., March 2012 Periodic Health Assessment, February 2015 military service physical separation, and February 2015 Report of Medical History Separation Examination). " June 2016 VA Connecticut Healthcare System record. [Medical Treatment Record-Government Facility, Receipt Date July 10, 2016] It should be noted that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (Continued on the next page) ? A complete rationale for all opinions must be provided. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.