Citation Nr: AXXXXXXXX
Decision Date: 07/14/21 Archive Date: 07/14/21
DOCKET NO. 210608-165377
DATE: July 14, 2021
REMANDED
Entitlement to service connection for residuals of left hip replacement is remanded.
Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine, claimed as a back condition, is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Air Force from January 1961 to August 1987, including service in Vietnam.
This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in November 2020 and December 2020.
The appeal for service connection for a low back disorder was last before the Board in September 2020, at which time, new and relevant evidence was presented and readjudication of this previously denied issue of service connection was found to be warranted. Additional evidentiary development was requested to comply with due process requirements, and the matter was remanded to complete the necessary development and readjudicate the claim. Although the Board sincerely regrets the additional delay, further development remains necessary so that the Veteran is afforded due process.
This appeal is being reviewed under the framework provided in the Appeals Modernization Act (AMA), which was enacted in 2019. The Veteran has filed a timely appeal to the Board for both issues under this framework, asking for direct review of his claim by the Board.
Under the direct review option, the record is closed as of the date of the decision. That is, only evidence received prior to the date of decision will be considered.
Evidence was added to the claims file during a period when new evidence was not allowed. As the Board is remanding the claims of service connection for left hip and low back disorders for further development, this additional evidence will be considered by the RO in the adjudication of those claims.
The issues on appeal are remanded to correct duty to assist errors that occurred prior to the rating decisions on appeal as described further below.
1. Entitlement to service connection for left hip replacement is remanded.
The Agency of Original Jurisdiction (AOJ) obtained an August 2020 medical opinion prior to the December 2020 rating decision on appeal. The examiner opined that "lumbar and right leg pathologies remain high as contributors/ proximate causes for greater left hip demands" but did not further specify which right leg pathologies were referenced and did not explicitly opine whether the service-connected right leg disabilities caused or aggravated the left hip residuals (as opposed to left hip "demands"). VA medical opinion, August 2020. This is potentially important to the Veteran's claim because the Veteran's right knee replacement, right ankle chip fracture with degenerative arthritis, and post-surgery right fifth toe residuals are all service-connected disabilities. The August 2020 opinion also describes a 1.5-inch leg length discrepancy due to right knee extension limitation. Thus, the August 2020 medical opinion is inadequate because it does not provide a complete opinion, supported by a medical rationale or reasoning, regarding whether the Veteran's residuals of left hip replacement are caused or aggravated by his service-connected right knee, right ankle, or right toe disabilities. An adequate opinion is required.
2. Entitlement to service connection for DDD of the lumbar spine is remanded.
In June 2018, well before the November 2020 decision on appeal, VA received a medical treatment record relevant to the Veteran's low back claim. This February 1995 record was from a military treatment facility's primary care clinic for care provided after the Veteran's retirement from active service. This document indicates there may be additional outstanding and relevant records in custody of a federal department or agency because, in referencing follow-up of sciatic treatment, it appears that this may not have been the first or only instance of post-service low back treatment from this military provider. A remand is required to allow VA to request the relevant records.
The matters are REMANDED for the following action:
1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously.
2. Obtain the Veteran's federally held treatment records from the medical treatment facility at Andrews Air Force Base, specifically seeking records for care provided after his retirement from active service. Document all requests for information as well as all responses in the claims file.
3. Obtain an addendum opinion regarding whether the Veteran's residuals of left hip replacement are at least as likely as not (a) proximately due to service-connected disability OR (b) aggravated beyond their natural progression by service-connected disability, specifically
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to include his service-connected right knee, right ankle, and right fifth toe disabilities, with consideration of the described leg length discrepancy due to limitation of extension of the right knee.
VICTORIA MOSHIASHWILI
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board K. McDonald, 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.