Citation Nr: 18159898 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 13-09 779 DATE: December 20, 2018 ORDER The appeal concerning entitlement to service connection for a right hip disorder is dismissed. REMANDED Entitlement to service connection for a left hip disorder is remanded. FINDING OF FACT In September 2017, prior to the promulgation of a decision on the issue on appeal, VA received written notification from the Veteran that he wished to withdraw his appeal regarding a right hip disorder. CONCLUSION OF LAW The criteria for the withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1989 to September 1993. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a September 2017 letter, the Veteran’s attorney confirmed that the Veteran wished to withdraw the appeal regarding entitlement to service connection for a right hip disorder. Thus, no allegations of errors of fact or law remain for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it must be dismissed. REASONS FOR REMAND Review of the file shows that, regrettably, additional evidentiary development is required before the Veteran’s claim can be adjudicated by the Board. See 38 C.F.R. § 19.9 (2017). While the Board sincerely regrets the delay, in light of the number of previous remands and the age of the claim, such is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The Board notes that once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97 (2008). Here, in its January 2018 remand, the Board asked that the file be returned to a March 2016 VA examiner, for an addendum opinion that addressed the Veteran’s lay statements regarding his in-service symptoms. The examiner was provided a detailed list of evidence from the file, to be used in the formulation of the additional opinion. In the resulting February 2018 addendum opinion, the examiner merely indicated that there was “no change of opinion provided” in March 2016, and he cut and paste the opinion that he offered in the prior examination report. As noted in its January 2018 remand, that examination report is inadequate for the purposes of deciding the Veteran’s claim. Therefore, on remand, the agency of original jurisdiction should arrange for a medical opinion from an examiner other than the one who provided the March 2016/February 2018 opinions, if possible, and ensure that such an opinion adequately addresses the Board’s January 2018 remand questions, which are set forth below. The matters are REMANDED for the following action: Obtain a medical opinion from a VA examiner other than the one who provided the March 2016 opinion and February 2018 addendum. The examiner should note in the examination report that the record and the Remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Although a thorough review of the complete record is imperative, attention is called to the following: *The July 1988 enlistment examination report reflecting normal clinical evaluations of the lower extremities and musculoskeletal system; no preexisting conditions noted; and the Veteran’s denial of swollen or painful joints, arthritis, and lameness. *The January 1991 and June 1992 examination reports reflecting normal clinical evaluations of the lower extremities and musculoskeletal system and the Veteran’s denial of swollen or painful joints; arthritis, rheumatism, or bursitis; bone, joint, or other deformity; and lameness. *The August 1993 separation examination report reflecting normal clinical evaluations of the lower extremities and musculoskeletal system and the Veteran’s denial of swollen or painful joints; arthritis, rheumatism, or bursitis; bone, joint, or other deformity; and lameness. *A June 1998 Reserves examination report reflecting normal clinical evaluations of the lower extremities and musculoskeletal system; the Veteran’s report of excellent health; and denials of swollen and painful joints; arthritis, rheumatism, or bursitis; and lameness. *The February 2009 claims application in which the Veteran reported an onset of bilateral hip disorders in January 1999. *April 2010 lay statements from S.W. and J.L., who both discussed the Veteran’s in-service limp and statement regarding a hip condition that flared-up and bothered him after physical exertion during service. *A May 2010 lay statement from the Veteran’s father who noted the Veteran’s childhood diagnosis of Legg-Perthes disease and the Veteran’s report of hip discomfort and pain while stationed in Okinawa. *Private treatment records from June 2010 reflecting increased left hip “achiness” over the last few years, x-rays confirming remnants of Legg-Calve-Perthes disease in the left, and assessment of left hip internal derangement status post Legg-Calve-Perthes disease and left knee injury. *Private treatment records from July 2010 to October 2014 reflecting intermittent pain to the left hip and a limp; x-rays confirming advanced left hip arthritis with significant deformity; and assessments and impressions of left hip dysplasia with associated degenerative joint disease (DJD). *A March 2015 private treatment record reflecting a left total hip replacement with a postoperative diagnosis of left hip DJD. *An April 2015 private treatment record reflecting the Veteran’s report of some achiness in his left hip, impression of osteoarthritis of the left hip, and doctor’s opinion that the Veteran’s left hip arthritis was within reasonable medical certainty connected to his knee injury and altered gait. *A March 2016 VA examination report reflecting a diagnosis of left hip joint replacement with no residuals, and the Veteran’s complaint of left hip pain, weakness, and limitation of motion. *The May 2016 statement in which the Veteran’s attorney contended that the Veteran’s left hip disorder was related to an in-service injury. After reviewing the claims file and examining the Veteran, the examiner is asked to identify all diagnoses involving the left hip. Then, for each left hip diagnosis identified, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s claimed left hip disorder had an onset during the Veteran’s active service or was caused by his active service. The VA examiner is asked to review, consider, and discuss the Veteran’s reported limp and hip discomfort/pain as noted in lay statements provided by fellow servicemembers S.W. and J.L., as well as a statement from the Veteran’s father. All opinions are to be accompanied by a detailed rationale consistent with the evidence of record. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel