Citation Nr: 18123987
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 13-17 691
DATE:	August 3, 2018
REMANDED
Entitlement to service connection for a right hip disorder, to include as secondary to a back disorder is remanded.
Entitlement to service connection for a back disorder, to include as secondary to a right hip disorder is remanded.
Entitlement to service connection for a right shoulder disorder is remanded.
Entitlement to service connection for a left knee disorder, to include as secondary to a right hip disorder is remanded.
REASONS FOR REMAND
The Veteran served on active duty from September 1974 to September 1977 with subsequent service in the Army National Guard. 
This case comes before the Board of Veterans’ Appeals (Board) on appeal from October 2010, December 2010, and January 2011 rating decisions by the VA Regional Office (RO) in Jackson, Mississippi.
In March 2015, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Jackson, Mississippi.
In May 2015, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development.
Regarding each of the claims on appeal, remand is required for additional development for service treatment records (STRs).  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017).  This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records.  38 C.F.R. § 3.159(c)(2).  The Board is obligated by law to ensure that the RO complies with its directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance.  Stegall, 11 Vet. App. at 271.
In the 2015 remand, the Board requested that the RO attempt to obtain STRs from the periods of the Veteran’s National Guard service.  On remand, the RO sent letters to the State Adjutant General, which was returned.  In a March 2017 letter, the RO was notified that it should contact the National Archives to obtain these records.  Although the RO concluded it had one all required development and provided that required notice to the Veteran in a November 2017 letter, the Board notes that the record did not indicate that the RO contacted the National Archives.  Either explanation or further development is required before adjudication of this appeal.  
1. Entitlement to service connection for a right hip disorder, to include as secondary to a back disorder.
Remand is required to obtain an opinion.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  
In May 2015, the Board remanded the issue of entitlement to service connection for a right hip disorder to obtain clarifying VA medical opinions.  Namely, the Board found that the record was unclear as to whether the Veteran’s right slipped femoral epiphysis with deformity was a congenital disease or congenital defect.  See 38 C.F.R. § 3.303(c) (2017); Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (holding that congenital diseases, but not defects, may be service connected, although service connection may be granted for additional disability due to disease or injury superimposed upon a congenital defect during service).
Subsequently, in March 2018, a VA examiner opined that the slipped capital femoral epiphysis is not congenital defect or congenital disease, although it likely developed in one’s teens or pre-teens.  The examiner noted that the disorder was a disease, and with normal physical findings at entrance and exit physical, and no in-service hip complaints, there was no aggravation.  
Although the examiner provided a negative opinion, the Board notes that at the March 2015 Board hearing, the Veteran stated that prior to his military service he injured his hip when he was 14 or 15 years old while playing football.  Following the injury, he walked with a limp but that his condition improved and he was able to walk and run normally.  When he enlisted into service with two relatives, he did not mention his hip condition as he thought it was resolved.  However, once he joined the military he stated he noticed his limp had returned and experienced difficulties running and exercising during basic training.  The Veteran further stated he did not seek treatment because he was afraid he would get “kick[ed] out because people was getting kicked out for practically anything.”  He stated that following basic training his hip felt better but then started experiencing symptoms again while stationed in Fort Ord.  Several statements from childhood friends and family also noted a left hip injury and limp.
A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C. §§ 1111.  A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306.
When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition.  38 U.S.C. § 1153.  If this burden is met, then the veteran is not entitled to service-connected benefits.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).
The record indicates that because the Veteran’s right hip disorder was not noted on the Veteran’s September 1974 enlistment examination, the presumption of soundness applies.  38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b).  However, in order to rebut the presumption of soundness, it must be shown with clear and unmistakable evidence that a disorder preexisted service and that the disorder was not aggravated by service.  Based on the March 2018 VA addendum opinion and the Veteran’s own and buddy statements, the Board finds that the Veteran’s hip disorder clearly and unmistakably pre-existed active service. Therefore, the remaining question is whether there is also clear and unmistakable evidence that the preexisting hip disorder was not aggravated by service.
Thus the opinions of record do not adequately consider and address appropriate standards or the Veteran’s competent testimony at the March 2015 Board hearing regarding his symptomatology during his military service.  As such, an addendum opinion must be provided regarding the Veteran’s symptomatology during military service and whether it was aggravated by it.
 
2.  Entitlement to service connection for a back disorder, to include as secondary to a right hip disorder, a right shoulder disorder, and left knee disorder, to include as secondary to a right hip disorder.
Regarding the back disorder, and addendum opinion is required that addresses all relevant evidence.  In a December 1988 letter from Dr. BTJ, the physician that the Veteran’s back and knee pain is secondary to the hip pain.  A March 2018 VA examiner determined that the back disorder was a congenital defect.  However, as stated above, service connection may be granted if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability.  38 U.S.C. §§ 1111, 1131; VAOPGCPREC 82-90 (July 18, 1990); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009).  The Board finds that the examination is inadequate as it failed to address the proper standard and to address the positive nexus opinion from Dr. BTJ.  The VA examiner also failed to consider and discuss the Veteran’s March 2015 hearing testimony that he experienced symptoms of his back in service due to his hip. 
Regarding the right shoulder disorder, an opinion is required that addresses all relevant evidence of record.  In a December 1988 letter from Dr. BTJ, the physician stated that regarding the Veteran’s shoulder, “he probably had a bursitis in it which is probably from using the cane.”  The February 2013 VA examination report and the March 2018 VA addendum failed to address Dr. BTJ’s letter and the Veteran’s testimony at the Board hearing that he had shoulder symptoms during service.  Therefore, the VA opinions of record are inadequate.
Regarding the left knee disorder, an opinion is required that addresses all relevant evidence.  A March 2018 VA opinion provided negative nexus opinions regarding the back disorder, to include as secondary to a right hip disorder, and a right shoulder disorder.  However, this VA examination report did not address the December 1988 letter from Dr. BTJ.  Furthermore, the Veteran testified at the March 2015 Board hearing that he experienced knee pain in addition to difficulties in his hip and back during basic training.  He stated that the left knee was secondary to the hip condition and not due to an injury during service.  As such, the Veteran’s lay statements at the Board hearing and December 1988 letter from Dr. B.T.J., should be addressed in the new addendum opinion. 
The matters are REMANDED for the following action:
1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  Namely, VA treatment records since March 2017 should be obtained and associated with the claims file.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his or her representative. 
2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the right hip disorder.  The entire claims file must be made available to and be reviewed by the examiner.  If an examination is deemed necessary, it shall be provided.  An explanation for all opinions expressed must be provided.  
The examiner must provide an opinion as the following questions:
(a) Presume that the Veteran’s right hip disorder pre-existed service - is there clear and unmistakable (undebatable) evidence that it did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service?
(b) If the answer to question (a) above is no, presume the disorder did not pre-exist service - is at least as likely as not (a 50 percent or greater probability) that the right hip disorder manifested during active duty service or is otherwise related to an event, injury, or disease incurred during active duty service?
Regardless of the conclusion reached, the examiner should consider and address the following: 1) the Veteran’s lay statements, specifically the testimony at the March 2015 Board hearing, 2) the February 2013 VA examination report; 3) the 2018 VA examination report; and 4) any relevant post-service relevant treatment records.
3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the back disorder.  The entire claims file must be made available to and be reviewed by the examiner.  If an examination is deemed necessary, it shall be provided.  An explanation for all opinions expressed must be provided.  
The VA examiner must provide an opinion as to whether the Veteran’s congenital defect of the back is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. 
Regardless of the conclusion reached, the examiner should consider and address the following: 1) the Veteran’s lay statements, specifically the testimony at the March 2015 Board hearing, 2) the February 2013 VA examination report; 3) the December 1988 letter from Dr. B.T.J; 4) the 2018 VA examination report; and 5) any relevant post-service relevant treatment records.
4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the right shoulder disorder.  The entire claims file must be made available to and be reviewed by the examiner.  If an examination is deemed necessary, it shall be provided.  An explanation for all opinions expressed must be provided.
The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right shoulder disorder had onset in, or is otherwise related to, active military service.  
The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the right shoulder is caused or aggravated by the right hip, back disorder, or a left knee disorder.  
Regardless of the conclusion reached, the examiner should consider and address the following:(1) the Veteran’s lay statements, specifically the testimony at the March 2015 Board hearing; 2) the February 2013 VA examination report; 3) the December 1988 letter from Dr. B.T.J; 4) the 2018 VA examination report; and 5) any relevant post-service relevant treatment records.
5.  After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the left knee disorder.  The entire claims file must be made available to and be reviewed by the examiner.  If an examination is deemed necessary, it shall be provided.  An explanation for all opinions expressed must be provided.  
The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the left knee disorder had onset in, or is otherwise related to, active service.  
The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the left knee is caused or aggravated by the right hip and/or the back disorder.  
Regardless of the conclusion reached, the examiner should consider and address the following:  1) the Veteran’s lay statements, specifically the testimony at the March 2015 Board hearing; 2) the February 2013 VA examination report; 3) the December 1988 letter from Dr. B.T.J; 4) the 2018 VA examination report; and 5) any relevant post-service relevant treatment records.
 
5. Ensure compliance with the directives of this remand.  If the report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

 
K. MILLIKAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	H. Yoo, Counsel 

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