Citation Nr: 21068606 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-08 151 DATE: November 10, 2021 REMANDED Entitlement to service connection for a bilateral hip condition, to include as secondary to service-connected right and left knee disabilities, is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected right and left knee disabilities, is remanded. REASONS FOR REMAND The Veteran served in the United States Army from August 1971 to August 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge in a June 2015 videoconference hearing, and a transcript of this hearing has been associated with the claims file. However, in an August 24, 2021 letter, the Veteran was informed that the judge that oversaw his hearing was no longer available to participate in his appeal, and as such, he could request an additional hearing in writing within 30 days of the date of the letter. In a response received on September 25, 2021, the Veteran indicated that he did not wish to attend another Board hearing and instead wanted his appeal to go forward. These matters were previously before the Board in May 2018 and August 2020, and both times the claims were remanded for further development. These matters have since returned to the Board for further appellate adjudication. 1. Entitlement to service connection for a bilateral hip condition, to include as secondary to service-connected knee disabilities, is remanded. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected knee disabilities, is remanded. Regretfully, the Board finds that these claims once again need to be remanded for additional development. The Veteran was afforded VA hip and low back examinations in November 2012, October 2014, and February 2019; however, all of these examinations were previously determined by the Board to be inadequate. In its August 2020 remand, the Board instructed the RO to obtain new VA examinations, and the RO substantially complied. The Veteran underwent VA examinations in July 2021 for both his hip condition and his low back condition. In the July 2021 hip examination, the examiner noted the Veteran experienced a motor vehicle accident during service in which the Jeep he was in rolled over his body from his abdomen to his feet. The Veteran also reported that his hip pain gradually developed due to his altered gait caused by his bilateral knee problems and his right knee surgery in 1975. He further reported minor traumas from his time in jump school and other repetitive motions related to his duties in service that exacerbated his knee and hip pain throughout service and since his separation. After reviewing the record, the examiner opined that the Veteran's service treatment records (STRs) and May 1992 separation examination showed no in-service hip injury or complaints of hip pain. Additionally, the Veteran did not complain of hip pain until 2012, 20 years after separation from service, and as such, the examiner opined that the Veteran's bilateral hip condition was less likely than not due to his service. The examiner also addressed whether the Veteran's bilateral hip condition was proximately due to or otherwise aggravated by service. The examiner opined that "there is no credible evidence to suggest that an injury or disease of one lower extremity (veteran's SC right knee) would have any significant impact on another lower extremity joint(claimed bilateral hip), unless the injury to the right knee resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity, resulting in a length discrepancy of more than four or five centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a very significant or Trendelenburg limp." However, the examiner explained that the Veteran's medical records do not show that his right knee condition is of the severity to result in his bilateral hip condition, nor is it severe enough to aggravate these conditions. In the July 2021 low back examination, the examiner noted the Veteran experienced a motor vehicle accident during service. The Veteran also reported that his back started to hurt around that time, and his duties as a drill sergeant and his time in jump school also contributed to many repetitive musculoskeletal traumas. The examiner noted that the Veteran's STRs contained no reports of a back injury or complaints of back pain during his service or on his May 1992 separation examination. Additionally, the Veteran did not report back pain until 2010, 18 years after he separated from service. And, although the examiner could not locate the 2012 imaging study showing spondylosis, the repeated references in the medical record to this imaging study provide no reason to doubt the condition existed in 2012. However, this condition was not noted until almost 20 years after service, and the examiner opined that the Veteran's low back condition was less likely than not due to service. When addressing whether the Veteran's low back condition was proximately due to or aggravated by his service-connected right knee disability, the examiner found there to be no relation between these conditions. The examiner explained that "there is no credible evidence to suggest that an injury or disease of one lower extremity (veteran's SC right knee) would have any significant impact on the back, unless the injury to the right knee resulted in major muscular or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a very significant or Trendelenburg limp)." However, the examiner explained that the Veteran's medical records do not show that his right knee disability was of the severity necessary to cause this extensive change in his gait. As such, the examiner opined the Veteran's low back condition was less likely than not proximately due to or aggravated by his service-connected right knee disability. The Board finds both the July 2021 hip and low back examinations to be inadequate. Although the July 2021 examiner briefly touched on the Veteran's in-service motor vehicle accident and the Veteran's and his spouse's lay statements in both the hip and back examinations, the examiner did not discuss why the Veteran's hip or low back conditions were not related to this motor vehicle accident. Additionally, the examiner again focused on the lack of hip and low back injuries and complaints in the Veteran's STRs and his separation examination when concluding there was no nexus between these conditions and the Veteran's service. The examiner's statement that the Veteran's and his spouse's lay statements are credible with respect to symptoms and their onset but cannot be used to determine a diagnosis or a nexus, while technically addressing their lay statements, is not sufficient enough to address why these lay statements do not show an in-service event, injury, or disease. The examiner cannot ignore the Veteran's lay statements of an in-service injury or event and symptoms suffered after the event, nor can the examiner base their opinion on the absence of in-service corroborating medical records. See Dalton v. Nicholson, 21 Vet. App. 23. 39-40 (2007). Additionally, while the July 2021 examiner addressed whether the Veteran's bilateral hip and low back conditions are either proximately due to or aggravated by his service-connected right knee disability, the examiner failed to address how the Veteran's service-connected left knee disability affected these conditions, as well as the effects of his service-connected left and right knee disabilities in combination. In its August 2020 remand, the Board instructed the examiner to address the Veteran's and his spouse's lay statements concerning his in-service motor vehicle accident and any symptoms or observations made concerning his hip and low back conditions. The Board also instructed the examiner to opine on whether the Veteran's service-connected knee disabilities either caused or aggravated his bilateral hip and low back conditions. However, as noted above, the examiner has failed to fully comply with the Board's instructions, and therefore the July 2021 hip and back examinations are inadequate. A remand by the Board confers on the claimant a legal right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. For the reasons above, the Board finds that a remand is necessary in order to obtain addendum medical opinions which comply with its remand instructions. Accordingly, these matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified examiner addressing the nature and etiology of the Veteran's bilateral hip condition. If the examiner determines that an in-person examination, to include via telehealth, is required, one will be scheduled. The examiner is asked to address the following: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral hip disability is due to or otherwise related to his service. The examiner is to explicitly address the Veteran's and his spouse's statements about his in-service motor vehicle accident and his statements about symptoms he experienced during service and since his separation. This includes statements made during the June 2015 hearing as well as written statements. (b.) Whether it is at least as likely as not that the Veteran's bilateral hip conditions are proximately due to his service-connected left and right knee disabilities, either singly or in combination. (c.) Whether it is at least as likely as not that the Veteran's bilateral hip conditions are aggravated by his service-connected left and right knee disabilities, either singly or in combination. 2. Obtain an addendum opinion from a qualified examiner addressing the nature and etiology of the Veteran's bilateral hip condition. If the examiner determines that an in-person examination, to include via telehealth, is required, one will be scheduled. The examiner is to address the following: (a.) Whether it is at least as likely as not that the Veteran's low back condition is due to or otherwise related to his service. The examiner is to explicitly address the Veteran's and his spouse's statements about his in-service motor vehicle accident and about symptoms he experienced during service and since his separation. This includes statements made during the June 2015 hearing as well as written statements. (b.) Whether it is at least as likely as not that the Veteran's low back condition is proximately due to or otherwise related to his service-connected left and right knee disabilities, either singly or in combination. (c.) Whether it is at least as likely as not that the Veteran's low back condition is aggravated by his service-connected left and right knee disabilities, either singly or in combination. The examiner is to specifically address the Veteran's and his spouse's statements concerning any symptoms he experienced both during and after service, to include changes in gait. A complete rationale must be provided for all opinions given. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.