Citation Nr: 21003859 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 18-19 742 DATE: January 25, 2021 REMANDED Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected disability is remanded. REASONS FOR REMAND The Veteran had active service from November 1978 to April 1980. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). The Veteran later testified before the undersigned Veterans Law Judge during an October 2018 videoconference hearing. A transcript of the hearing is associated with the claims file. This matter was previously before the Board in May 2019 at which time it was remanded for an addendum opinion and for further development of the record. This matter was again before the Board in August 2020 at which time it was again remanded for an addendum opinion. The Board's remand directives and the subsequent actions by the AOJ will be discussed below. 1. Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected disability is remanded. 2. Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected disability is remanded. As noted, this matter was previously before the Board in May 2019. The record for review reflected a diagnosis of degenerative arthritis of both hips, verified by an August 2015 X-ray. A June 2016 medical opinion found that the Veteran’s hip disorders are less likely than not related to service and less likely than not related to the Veteran’s service-connected right knee disorder. However, the Board determined that the medical nexus opinion addressing the etiology of these disabilities was inadequate to readjudicate the Veteran’s appeal. Therefore, the Board remanded for an addendum opinion addressing whether the Veteran’s bilateral hip disorders are secondary to his back disorder. Following the remand, the Veteran was also afforded a VA examination in October 2019. The examiner found that it is less likely than not (less than a 50 percent probability) that any current or previously-diagnosed left hip osteoarthritis or right hip osteoarthritis was incurred in the Veteran's service, including as a result of an in-service parachute accident. The examiner noted the prior diagnoses of osteoarthritis of both hips based on the 2015 x-rays. However, the examiner stated that the Veteran’s most recent x-rays in December 2018 were negative for bilateral osteoarthritis of the hips, which in part formed the basis of his negative nexus opinions. Further, the examiner noted that the Veteran’s hip pain began 37 years after the in-service injury and found that it is not plausible that an injury 37 years before would cause the current bilateral hip condition. The examiner found no medical evidence that the Veteran's current bilateral hip condition incurred in or was caused by the Veteran's injury in service. He found that the most likely cause of the Veteran’s current bilateral hip condition is post-service overuse or injury. The examiner opined that it is less likely than not that the Veteran's bilateral hip disorder is proximately due, or was permanently aggravated by, the Veteran’s service-connected right knee disorder, back disorder, or left knee disorder. The October 2019 VA examiner further noted that the Veteran’s bilateral hip pain caused functional loss, to include the inability to kneel, squat, stand straight, walk or stand for long periods, and climb or descend stairs. However, no opinion was provided concerning whether the functional loss caused by the Veteran’s hip pain was at least as likely as not due to the Veteran’s service, or caused or aggravated by a service-connected disability. In August 2020, the Board therefore remanded for an addendum opinion addressing the following issues: a. Identify any disability involving the Veteran’s right and left hips. b. For each disability identified in part (a), state an opinion as to whether such is at least as likely as not proximately due to or the result of any incident of the Veteran's service. c. For each disability identified in part (a), state an opinion as to whether such is at least as likely as not proximately caused or aggravated by a service-connected disability, to specifically include an altered gait d. If the Veteran’s reported bilateral hip pain is not found to be a manifestation of any disability (service-connected or otherwise), describe the functional impairment resulting from such, and if present, whether such impairment is at least as likely as not related to service or caused or aggravated by service-connected disability, to specifically include an altered gait resulting from the Veteran’s service-connected low back disability and left leg length discrepancy. In doing so, the examiner is requested, to the extent possible, to describe any and all functional impairment stemming from the Veteran's bilateral hip pain on his ability to stand, walk, run, stoop, and maintain balance. In October 2020, a VA examiner provided an opinion that it is less likely than not (less than 50 percent probability) that the Veteran’s claim of bilateral hip pain was caused or aggravated by service or secondary to his service-connected low back disability and left leg-length discrepancy. The examiner reasoned that there was insufficient evidence to support that a low back disorder or mild leg-length discrepancy has a causal association with a bilateral hip condition. He stated that these diagnoses are separate and distinct. He further stated that the Veteran’s most recent imaging in 2018 does not show any evidence of ongoing hip pathology. However, as noted above, the Board’s remand also required an opinion as to whether the Veteran’s bilateral hip pain reaches the level of a functional impairment of earning capacity so as to constitute a current disorder. Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018). As no such opinion was provided, the addendum opinion failed to comply with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board emphasizes that under Saunders, "pain need not be diagnosed as connected to a current underlying condition to function as an impairment." In Saunders, the Federal Circuit found that “disability” under 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of disability. In light of Saunders, and because the opinion provided did not comply with the prior remand directives, the Board finds that a remand is again required for an addendum opinion. This opinion must address whether the Veteran’s bilateral hip pain reaches the level of a functional impairment of earning capacity so as to constitute a current disability. The matters are REMANDED for the following action: 1. The AOJ must transfer the Veteran's electronic file to an appropriate VA clinician for an addendum opinion. The examiner is requested to review all pertinent records associated with the file, including the Veteran's service treatment records, post-service medical records, SSA medical records and lay statements. 2. The examiner should provide the following opinions: a. Whether the Veteran’s bilateral hip pain reaches the level of a functional impairment of earning capacity so as to constitute a current disability, and if so, b. Whether it at least as likely as not (a 50 percent or better probability) that the Veteran’s bilateral hip pain was incurred in the Veteran's service. *In addressing the above, the examiner is on notice that the Veteran is considered competent and credible to report experiencing pain in his hips. *The examiner is requested to describe the functional impairment stemming from the Veteran's bilateral hip pain on his ability to stand, walk, run, stoop, and maintain balance. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.