Citation Nr: 21069061 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 10-39 128 DATE: November 17, 2021 REMANDED Entitlement to service connection for a right hip disorder, to include as secondary to service-connected obstructive sleep apnea (OSA), lumbar strain, and/or right knee and left knee patellofemoral syndrome, is remanded. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected OSA, lumbar strain, and/or right knee and left knee patellofemoral syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1999 to December 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By the way of history, the Board remanded these issues to the RO for further development in February 2014. Specifically, the Board remanded for a new VA examination to determine the nature and etiology of the claimed bilateral hip disorder. The Board then denied the issues in a September 2016 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 Order, the Court partially vacated the September 2016 Board decision and remanded the issues of entitlement for right and left hip disorders as the Court found the August 2014 VA medical opinion as inadequate. In April 2018, the Board remanded the issues of entitlement to service connection for right and left hip disorders to include as secondary to service-connected lumbar strain. The Veteran was afforded a Board hearing in March 2012. The Board notes that the Veterans Law Judge (VLJ) who conducted the March 2012 hearing has since retired and is no longer employed by the Board. In April 2020, the Veteran was notified of this information and afforded the opportunity for another hearing, pursuant to 28 C.F.R. § 20.707 (noting that a VLJ who conduct a hearing on appeal must participate in any decision made on that appeal). See also 38 U.S.C. § 7107(c). The Veteran indicated that he did not wish to appear at another Board hearing in a May 2020 submission. The case was most recently remanded by the Board in June 2021 for seeking an adequate addendum VA opinion in substantial compliance with directives set forth in previous remand instructions. See Stegall v. West. The case has now been returned to the Board for appellate review. Although the Board sincerely regrets additional delay, there has not been substantial compliance with the Board's previous remand directives regarding the issues and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's June 2021 remand directives sought a number of VA medical opinions regarding the Veteran's bilateral hip disorder. First, the Board sought an opinion regarding whether it was at least as likely as not that the Veteran's bilateral hip disorder had its onset during or is otherwise related to service, to include the performance of high-impact activity. As part of this opinion, the Board requested that the Veteran's contention that he sustained trauma to his body when performing parachute jumps from airplanes and physical training during service be addressed. Additionally, the Board requested the clinician address and discuss the medical treatise evidence cited by the Veteran in the May 2021 Informal Hearing Presentation (IHP). Second, the Board sought an opinion as to whether it was at least as likely as not that the Veteran's hip disorder was caused by the Veteran's service-connected OSA. As part of this opinion, the Board requested the medical treatise evidence provided by the Veteran in his January 2021 and May 2021 IHPs be addressed and discussed. Finally, the Board sought an opinion as to whether it was at least as likely as not that the Veteran's hip disorder was aggravated by his service-connected OSA. As part of the opinion, the Board requested the medical treatise evidence provided by the Veteran in his January 2021 and May 2021 IHPs be addressed and discussed. The Board finds there has not been substantial compliance with its directives. The Veteran was afforded a new VA medical opinion in June 2021. As to the question of whether it was at least as likely as not that the Veteran's bilateral hip disorder had its onset during or is otherwise related to service, the clinician found it less likely than not. In support of that finding, the clinician relied exclusively on the absence of contemporaneous treatment records as to the Veteran's bilateral hip disorder during and after service. As to the Veteran's contention that his involvement in parachute jumps and physical training caused trauma, the clinician again relied exclusively on the absence of contemporaneous treatment records. It is well settled that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). In regard to the medical treatise evidence the Board sought to be addressed and discussed, the clinician simply stated, "references provided reflect only an association, causation is not noted in any of the referenced articles." The Board finds this conclusory. The Board sought the medical treatise evidence be discussed. The clinician's review of the evidence was without sufficient discussion and thus conclusory. As to the question of whether it was at least as likely as not that the Veteran's hip disorder was caused by the Veteran's service-connected OSA, the clinician found it less likely than not. In support of that finding, the clinician states the medical literature is silent as to support OSA would have any effect on the hip joint, to include arthritis. In addressing the medical treatise evidence submitted by the Veteran, the clinician again states "references provided reflect only an association, causation is not noted in any of the referenced articles." As was done before, the Board finds the clinician's review of the evidence was without sufficient discussion and conclusory. The Board also notes the clinician's recognition that the medical treatise evidence reflected an association between OSA and the hip joint contradicts the initial finding that the medical literature is silent to support OSA would have any effect on the hip joint. As to the question of whether it was at least as likely as not that the Veteran's hip disorder was aggravated by his service-connected OSA, the clinician opined it was less likely than not. His rationale for this opinion was that the medical literature was silent to support OSA as having any effect on the hip joint, to include worsening an arthritis condition beyond its natural progression. In addressing the medical treatise evidence submitted by the Veteran, the clinician repeats the determination that the evidence reflects only an association without noting causation. The Board finds this opinion inadequate for the same reasons as above. As adequate opinions were not provided as requested in the Board directives, the Board finds a remand is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum VA opinion to determine the etiology of the claimed bilateral hip disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for further physical examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following questions: (A) Is it at least as likely as not (probability of 50 percent or greater) that the Veteran's bilateral hip disorder had its onset during service or is the result of service, to include the performance of high-impact activity? The examiner should specifically address the Veteran's contention that he sustained trauma to his body when performing parachute jumps from airplanes and physical training during service. The examiner should specifically address and discuss the medical treatise evidence cited by the veteran's representative in the May 2021 Informal Hearing Presentation. (B) Is it at least as likely as not (probability of 50 percent or greater) that the Veteran's bilateral hip disorder was caused by his service-connected obstructive sleep apnea? The examiner should specifically address and discuss the medical treatise evidence cited by the Veteran's representative in the January 2021 and May 2021 Informal Hearing Presentations. (C) Is it at least as likely as not (probability of 50 percent or greater) that the Veteran's bilateral hip disorder was aggravated by his service-connected obstructive sleep apnea? The examiner should specifically address and discuss the medical treatise evidence cited by the veteran's representative in the January 2021 and May 2021 Informal Hearing Presentations. The mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of the claimed disability, providing there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstance presented. All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.