Citation Nr: 21002176 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-04 611 DATE: January 12, 2021 REMANDED Entitlement to service connection for a bilateral hip condition, to include as secondary to service-connected conditions, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1991 to September 1995. Though this matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) regional office, it was initially addressed in a February 2004 rating decision. This matter was previously remanded by the Board in November 2018. As an initial matter, the Board notes that a docketing letter was sent to the Veteran in December 2020. However, the Veteran’s prior representative, not his current representative, was copied on this letter. Nonetheless, as the claim is being remanded and therefore the Veteran and his representative will have another opportunity to provide argument, the Board finds no prejudice in adjudicating the Veteran’s claim. Entitlement to service connection for a bilateral hip condition, to include as secondary to service-connected conditions, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to obtain an adequate opinion regarding the nature and etiology of the Veteran’s claimed bilateral hip condition. In December 2019, the Veteran underwent a VA examination in which the examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by his service. In support of this opinion, the examiner noted that while the Veteran’s service treatment records (STRs) do mention a one-time complaint of bilateral medial thigh pain in 1992, he denied musculoskeletal complaints at the time of separation in 1995, and the first mention of chronic hip complaints was not until 2004. See December 2019 VA Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ); December 2019 VA Direct Medical Opinion DBQ. A review of the Veteran’s STRs reveals that, in addition to an October 1992 complaint of bilateral medial thigh pain, in January 1992 the Veteran sought treatment for hip pain that he stated had been present for four months. See STR-Medical. As such, the examiner’s opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Moreover, an opinion is inadequate when, as indicated here, the examiner fails to consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As such, the Board finds the December 2019 opinion to be inadequate with respect to service connection on a direct basis. The December 2019 examiner also opined that it was less likely than not that the Veteran’s bilateral hip condition was proximately due to or the result of his service-connected ankle conditions. In support of this opinion, the examiner stated that there was no evidence that the Veteran’s ankle condition is the cause of his hip condition, and that the Veteran had not made any complaints regarding his ankles since 2006. See December 2019 VA Secondary Medical Opinion DBQ. Likewise, the December 2019 examiner opined that it was less likely than not that the Veteran’s bilateral hip condition was aggravated beyond its natural progression by his service-connected ankle conditions. In support of this opinion, the examiner stated that there has been no mention of ankle complaints over the past 10 years, and as his ankles are greatly improved and have not played a factor in pain, stability, gait, or stance in many years, there is no plausible way it could be aggravating the hip condition. See December 2019 VA Aggravation Medical Opinion DBQ. However, the Veteran’s VA treatment records indicate that he has frequently reported experiencing bilateral ankle pain since 2006 and was provided a specialty brace in May 2017 to assist with chronic inflammation and pain. See Fayetteville NC VA Medical Center (VAMC) records, received February 2018 in CAPRI. Moreover, the Board notes that the rating assigned for the Veteran’s bilateral ankle condition was increased from 10 percent to 20 percent in the February 2016 rating decision from which this appeal arises. As such, the examiner’s opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, supra. Moreover, an opinion is inadequate when, as indicated here, the examiner fails to consider the Veteran’s prior medical history. See Stefl v. Nicholson, supra. Additionally, with respect to aggravation, the Board finds the December 2019 examiner’s rationale to be conclusory. An opinion is inadequate when it fails to set forth clear conclusions and support those conclusions with an analysis, or reasoned medical opinion, that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, supra; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds the December 2019 opinion to be inadequate with respect to service connection on a secondary basis. For these reasons, the Board finds the December 2019 opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran’s claimed bilateral hip condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lastly, the Board notes that, in November 2018, the Board instructed the AOJ to obtain any outstanding private medical records related to the Veteran’s claim. The evidence indicates that, in October 2019, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment pertinent to his claims. The AOJ also provided the Veteran and his representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran’s medical records on his behalf. See October 2019 VA Correspondence. To date, the Veteran has not responded to the request. VA’s duty to assist is not a “one-way street,” and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. The Veteran is cautioned that failure to appear for an examination may result in the denial of his claim. 38 C.F.R. § 3.655. Accordingly, the matter is REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician, other than the clinician who conducted the December 2019 examination, regarding the nature and etiology of the Veteran’s claimed bilateral hip condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is warranted, obtain the Veteran’s detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed hip condition, opine as to: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran’s active duty service; ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition was caused by a service-connected condition; and iii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.