Citation Nr: 21062716 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 08-30 588 DATE: October 12, 2021 REMANDED Entitlement to service connection for a bilateral hip or thigh disability, including as secondary to a service connected back, knee, shin, foot, or toe disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1985 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before an Acting Veteran's Law Judge in January 2011 who is no longer employed by the Board. The Veteran testified at a subsequent hearing before the undersigned in December 2015. The Board remanded this matter in February 2012, July 2014, August 2015, February 2016, December 2017, February 2020, and February 2021 for additional development. The matter is now returned to the Board for further appellate review. In March 2021 the Veteran declined all future examinations and requested the Board decide his claim with the evidence of record. The Board recognizes the Veteran's request; however, the Board is simply unable to properly adjudicate the Veteran's claim with the medical examinations of record. The Board regrets further delay; however, to balance the Veteran's request and VA's duty to assist, the Board will remand the Veteran's claim to obtain a medical nexus opinion only. VA provided the Veteran an examination in May 2019. The examiner diagnosed the Veteran with right hip trochanteric pain syndrome only. The examiner did not diagnose the Veteran with a left hip condition. VA previously provided the Veteran an examination in February 2018. The examiner diagnosed the Veteran with right hip trochanteric pain syndrome. The February 2018 examiner reported the Veteran has radiologically confirmed bilateral mild hip degenerative joint disease (DJD) that is only clinically symptomatic in the Veteran's right hip. VA provided the Veteran a knee and lower leg examination in March 2016. The examiner reported the Veteran has malicious malalignment syndrome that consists of, in part, an anteverted right hip. A remand is necessary to obtain an addendum opinion to clarify the Veteran's left and right hip diagnoses. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (Board must obtain an opinion addressing whether diagnoses in the record were made in error where a VA examiner finds that there is no current diagnosis). Both the May 2019 and February 2018 examinations are inadequate to adjudicate the Veteran's claim because the examiners did not provide sufficient rationale to support their respective negative nexus opinions. The May 2019 examiner provided a negative nexus opinion for both direct service connection and secondary service connection but concluded she cannot state without speculation whether the Veteran's right hip condition is related to his active-duty service or secondary to a service-connected disability. The May 2019 examiner did not adequately explain why a response would be speculation. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). The February 2018 examiner provided a negative nexus opinion, in part, due to the lack of documentation of hip complaints in the Veteran's service treatment records (STRs) and attributed the Veteran's hip conditions to post service employment as a truck driver and normal aging. The examiner also concluded "...medical literature does not support a causal or aggravational relationship..." between the Veteran's service-connected disabilities and his hip conditions. See February 2018 VA Examination. The February 2018 examiner did not adequately explain why, in the Veteran's particular case, his hip conditions are more likely due to aging and his post service employment as a truck driver rather than his active-duty service. Barr, 21 Vet. App. at 311. Also, the examiner appears to have impermissibly dismissed the Veteran's reports of continuous hip problems solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). Further, the examiner did not provide citations for the referenced medical literature nor explain how it supports a negative nexus opinion for secondary service connection in the Veteran's particular case. Barr, 21 Vet. App. at 311. The Board is cognizant of the Veteran's request to adjudicate his claim without future examinations and based on the evidence of record; however, the Board is unable to do so because there is not an adequate examination. To best accommodate the Veteran's request, the Board is remanding his claim for a medical nexus opinion only. The matter is REMANDED for the following action: Obtain an opinion from an appropriate clinician to determine the nature and etiology of any right or left hip and/or thigh disabilities present at any time over the appeal period (from July 2007 to the present). The examiner must opine whether any condition diagnosed is at least as likely as not related to an in-service injury, event, or disease, including running, marching, or participating in military parades. The examiner must review the medical history reported within the medical records associated with the claims file and within the Veteran's January 2011 and December 2015 testimony. If the selected clinician asked to provide the opinion indicates that he or she cannot provide an opinion without a physical examination of the Veteran, such determination by the clinician must be documented in the file with an explanation for why a physical examination of the Veteran is necessary in order to provide the requested opinion. If there is no current diagnosis for right or left hip and/or thigh disability, the examiner must address whether the Veteran experiences hip and/or thigh pain which results in functional loss. If so, the examiner must opine whether the Veteran's right or left hip and/or thigh functional loss due to pain is at least as likely as not related to his military service. If the clinician determines that the Veteran has not had right or left hip/thigh DJD or an anteverted right hip at any point during the appeal, the examiner must explain why he or she concluded that these diagnoses reflected in the record were made in error or have since resolved. The examiner must also opine whether any right or left hip and/or thigh disability (or functional loss due to hip and/or thigh pain) diagnosed at any time over the appeal period is at least as likely as not (1) proximately due to any service connected back or lower extremity (knees, shins, feet, toe) disability, or (2) aggravated beyond its natural progression by any service-connected back or lower extremity (knees, shins, feet, toe) disability. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. If aggravation is found the examiner must attempt to establish a baseline level of severity of any right or left hip and/or thigh disability prior to aggravation by the service connected back or lower extremity (knees, shins, feet, toe) disability. If the examiner finds the Veteran's right or left hip/thigh disability is due to post-service factors, such as aging or post-service employment, rather than military service, the examiner must explain why the right or left hip/thigh disability would be MORE likely due to aging or some other post-service factor rather than the Veteran's active-duty service. The explanation must be based on the particular facts of the Veteran's case. If the examiner references medical literature to support his or her opinion, the examiner must identify the medical literature used to support the opinion. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.