Citation Nr: 21004082 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-17 126A DATE: January 26, 2021 REMANDED 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from September 1962 to August 1966, to include in the Republic of Vietnam. This matter comes before the Board of Veteran’s Appeals (Board) on appeal of an August 2015 rating decision in which the Department of Veterans’ Affairs (VA) Regional Office (RO) denied service connection for neck and left hip disabilities. The Veteran expressed disagreement with these determinations, and the present appeal ensued. The Veteran’s appeal was previously before the Board in September 2019, when it was determined that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran. The Board’s prior remand directives and the subsequent actions of the Agency of Original Jurisdiction (AOJ) will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. Preliminary note At a February 2020 VA examination, the Veteran reported that there had been an error regarding his claim to establish service connection for a left hip disability, to include the resulting appeal. Specifically, the Veteran contended that he never intended to file such a claim; rather, he wished to establish service connection for a right hip disability. While the Board acknowledges these contentions, all procedural steps in the present matter, to include the rating decision on appeal and the Veteran’s disagreement with such, have unambiguously identified a left hp disability. As such, the AOJ has not adjudicated the matter of entitlement to service connection for a right hip disability in the first instance and the Board is without the authority to do so. In light of above, the Veteran is encouraged to file an original claim to establish service connection for a right hip disability with the assistance of his accredited representative. 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability, is remanded. The record reflects that diagnoses of degenerative arthritis of the cervical spine and a left hip strain were rendered during the appeal period, and the Veteran contends that such are the result of his in-service duties as a deep-sea diver, to include carrying heavy supplies, falling off a dock, and climbing on and off of a forklift. He also asserts that his left hip disability may be caused or aggravated by a service-connected left foot disability, to include an altered gait resulting from such. Consequent to the September 2019 remand, the Veteran was provided VA examinations in February 2020 to determine the nature and etiology of his neck and left hip disabilities. The VA physician provided opinions which are unfavorable to the Veteran’s appealed issues; however, the rationale accompanying these opinions provides that each are based on the examiner’s discounting of the Veteran’s reports of experiencing neck and left hip pain during and since service. The United States Court of Appeals for Veteran’s Claims (the Court) and the Federal Circuit Court have both firmly held that such actions negatively impact the adequacy and probative weight of such. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In light of above, the Board concludes that the February 2020 VA opinions are inadequate for the purpose of readjudicating the Veteran’s appealed issue. Accordingly, the Board’s September 2019 remand directives have not been substantially completed, and another remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, to ensure completeness of the file for the examiner to review and consider when providing the requested medical opinions, the Veteran should be contacted and requested to identify all outstanding VA and private treatment records pertinent to the issues remanded, herein. The matters are REMANDED for the following actions: 1. The AOJ must associated all updated records of GA treatment pertinent to the Veteran with his VA file. 2. The AOJ must contact the Veteran and request that he complete a release for any post-service treatment records that are outstanding and pertinent to his left hip and neck disabilities. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. The Veteran is encouraged to cooperate with the AOJ in obtaining these records by completing and submitting a release for all identified records. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of his claimed neck and left hip disabilities. After a review of the complete record, physical examination of the Veteran, and completion of any necessary testing, the examiner is requested to address the following: a. Identify all neck and left hip disabilities present during the appeal period (since June 2014). b. For each disability identified in part (a), please provide an opinion concerning whether such is at least as likely as not related to the Veteran’s service, to include his duties as a deep-sea diver. *In responding to the above directive, the examiner is on notice that the Veteran’s reports of experiencing neck and/or left hip pain during and since active duty may not be discounted based solely on a lack of contemporary objective medical evidence corroborating such. c. For each left hip disability identified in part (a), please provide an opinion concerning whether such is at least as likely as not caused by a service-connected disability. d. For each left hip disability identified in part (a), please provide an opinion concerning whether such is at least as likely as not aggravated by a service-connected disability. All stated opinions must be supported by a complete rationale. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the Veteran’s appealed issues. If either benefit sought is not granted to the fullest extent, the Veteran and his representative must be furnished a copy of the readjudication and afforded a reasonable opportunity to respond SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gonzalez 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.