Citation Nr: 21003890 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-15 848 DATE: January 25, 2021 REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a left hip condition, to include as secondary to the claimed left knee condition, is remanded. Entitlement to service connection for a right hip condition, to include as secondary to the claimed left knee condition, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1968 to December 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The Board notes that jurisdiction of this matter lies with the RO in Winston-Salem, North Carolina. The Board notes that the Veteran requested a Board videoconference hearing in his March 2017 appeal to the Board. Subsequently, in an October 29, 2019 written notice, the Veteran’s representative advised that the Veteran would not be able to attend the scheduled Board hearing and requested that a decision be rendered based on the evidence of record. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704 (e). The Board has recharacterized the matters of service connection for left and right hip conditions to include as secondary to his claimed left knee condition based on his assertions made at the February 2016 VA examination. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for a left knee condition is remanded. 2. Entitlement to service connection for a left hip condition, to include as secondary to the claimed left knee condition, is remanded. 3. Entitlement to service connection for a right hip condition, to include as secondary to the claimed left knee condition, is remanded. The Veteran was afforded VA knee and hip examinations in February 2016. In a September 2020 Board decision, the Board found these examinations to be inadequate and remanded for new examinations. The Veteran was again afforded such examinations in November 2020 and the VA examiner rendered the same opinions with essentially the same, inadequate rationales that had been found to be inadequate prior. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the November 2020 examination opinions were essentially the same found to be inadequate previously, there has not been substantial compliance with the Board’s directives. As such, remand for new VA examinations is required. The matters are REMANDED for the following action: Left Knee 1. Schedule the Veteran for a VA examination for his left knee disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s left knee condition at least as likely as not related to service, including a claimed fall on a ladder while on active duty? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The examiner must consider and comment on the Veteran’s assertion regarding continuing symptomatology since service. An opinion that relies entirely on a lack of documented symptoms is not adequate and will result in another remand. Bilateral Hips 2. Schedule the Veteran for a VA examination for his left and right hip conditions. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran’s left/right hip conditions at least as likely as not related to service, including a claimed fall on a ladder while on active duty? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Are the Veteran’s left/right hip conditions at least as likely as not proximately due to his claimed left knee condition? Are the Veteran’s left/right hip conditions at least as likely as not aggravated, i.e., worsened beyond their natural progression, by his claimed left knee condition? The examiner must consider and comment on the Veteran’s assertion regarding continuing symptomatology since service as well as his contention that his hip conditions are secondary to his claimed left knee condition. An opinion that relies entirely on a lack of documented symptoms is not adequate and will result in another remand. (Continued on the next page)   3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.