Citation Nr: AXXXXXXXX
Decision Date: 07/14/21 Archive Date: 07/14/21
DOCKET NO. 200903-122368
DATE: July 14, 2021
REMANDED
Entitlement to service connection for osteoarthritis of the left hip, to include as secondary to degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS) and/or left lower extremity radiculopathy is remanded.
REASONS FOR REMAND
The Veteran served on active duty from October 1960 to April 1961. Sadly, the Veteran died in December 2020. The Appellant is his surviving spouse.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2020 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO).
The rating decision on appeal was issued in September 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A hearing was held in April 2021 before the undersigned Veteran's Law Judge; a transcript has been associated with the file. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).
Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claim for further development, this additional evidence will be considered by the RO in the adjudication of those claims.
The September 2020 rating decision found that new and relevant evidence had been received to readjudicate the claim of service connection for osteoarthritis of the left hip. This is a favorable finding by the agency of original jurisdiction (AOJ) and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c).
Entitlement to service connection for osteoarthritis of the left hip, to include as secondary to degenerative arthritis of the lumbar spine with IVDS
The Appellant asserts that the Veteran's left hip condition is a result of his service-connected degenerative arthritis of the lumbar spine with IVDS.
The Board finds there was a pre-decisional duty to assist error in failing to provide the Veteran with a VA examination. No examination was provided in conjunction with the current claim filed in August 2020.
For secondary service connection claims, an examination is required where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) a service-connected disability; (3) an indication that the disability or symptoms of disability may be associated with the service-connected disability; but (4) insufficient competent medical evidence on which to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006).
In the September 2020 rating decision, the AOJ made binding favorable findings that the Veteran (1) had a current disabilities of left hip osteoarthritis and left lateral hip pain, and (2) had a primary service-connected disability of degenerative arthritis of the lumbar spine with IVDS. Additionally, service-connection is in effect for left lower extremity sciatic nerve radiculopathy associated with degenerative arthritis of the lumbar spine with IVDS. Thus, the first two McLendon elements are met.
The record also contained an indication that the current disability and service-connected disabilities may be related. Namely, the Veteran's private medical records show he was counseled regarding lumbar spine surgery in July 2014. The provider noted that as a result of the suggested surgery to the Veteran's lumbar spine, the Veteran, "understands he could develop left-sided symptoms after the surgery, and that he may require further decompression surgery that would likely require stabilization in the form of fusion and instrumentation." The Veteran underwent the suggested surgery as stated above in August 2014.
Additionally, the Veteran's January 2018 private treatment records state that the Veteran had been experiencing "progressively worsening low back pain which radiates into the left hip." The Veteran's private treatment records from January 2018 also show the Veteran "presented with severe left leg pain. Imaging showed large left L2-3 inferior free fragment." The provider then recommended a "left L2-3 microdiscectomy." Furthermore, the Veteran's private medical records received in February 2018 show the Veteran was experiencing issues with his lumbar spine to include a disc displacement. The provider stated in reference to the left-sided pain, "I think is most likely symptomatic from his large left L2-3 disc herniation with inferior free fragment causing a left L3 radiculopathy." The Board finds that these private treatment records indicate the left hip osteoarthritis and pain may be related to his service-connected lumbar spine disability and raises the theory that it may be related to his left lower extremity radiculopathy.
As to whether there was sufficient competent medical evidence on which to decide the claim, the Board acknowledges that the Veteran underwent a VA examination for his left hip in March 2018 in conjunction with the prior final denial. The resulting opinion addresses only whether left hip arthritis is related to lumbar strain. It does not address a nexus between degenerative arthritis of the lumbar spine with IVDS or left lower extremity radiculopathy. Therefore, there is not sufficient competent medical evidence on which to decide the claim of a left hip disability as secondary to degenerative arthritis of the lumbar spine with IVDS or radiculopathy.
All McLendon factors were met at the time of the September 2020 rating decision and failure to provide an examination was a predecisional duty to assist error requiring remand.
The matters are REMANDED for the following action:
1. Obtain an addendum opinion from an appropriate clinician regarding nexus between the Veteran's left hip disability and his service-connected degenerative arthritis of the lumbar spine with IVDS and/or left lower extremity radiculopathy. The examiner must review the entire record prior to providing an opinion with specific attention paid to the Veteran's July 2014, January 2018, and February 2018 private medical records. The examiner is asked to provide answers to the following questions.
Is it at least as likely as not that the left hip disability:
(a.) was caused by his service-connected degenerative arthritis of the lumbar spine with IVDS?
(b.) was aggravated beyond its natural progression by his service-connected degenerative arthritis of the lumbar spine with IVDS?
(c.) was caused by his service-connected radiculopathy of the left lower extremity?
(d.) was aggravated beyond its natural progression by his service-connected radiculopathy of the left lower extremity?
An explanation of the medical reasoning supporting each opinion must be provided.
LAURA E. COLLINS
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board Associate Counsel, S. Conti
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.