Citation Nr: 21005818 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-45 915 DATE: February 2, 2021 REMANDED Entitlement to service connection for a left hip disability, to include as secondary to service-connected left knee disability, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran had active service from March 1976 to March 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing testimony has been associated with the claims file. In July 2019, the Board remanded this matter for further development. At that time, the Board also remanded the claims of service connection for low back and right knee disabilities. In a June 2020 rating decision, service connection was granted for degenerative arthritis of the spine and for right knee. This constitutes a full grant of the benefits that was sought on appeal. Therefore, those issues are no longer on appeal before the Board. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability, to include as secondary to service-connected left knee disability, is remanded. 2. Entitlement to service connection for a left hip disability, to include as secondary to service-connected left knee disability, is remanded. Although further delay is regrettable, based upon its review of the Veteran’s claim file, the Board finds there is a further duty to assist the Veteran with his claim for a lumbar spine disability. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran claims service connection for bilateral hip disability as secondary to his service-connected left knee arthritis and instability. The Board remanded the claim in July 2019 to obtain a VA medical opinion as to the etiology of his bilateral hip disability. Specifically, a medical opinion was sought as to whether the currently diagnosed bilateral hip disability is either causally related to any incident during service, or caused by, or aggravated by, his service-connected left knee disability. A VA examination and a medical opinion was obtained in November 2019. However, the Board finds this medical opinion obtained in November 2019 to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The November 2019 VA examiner provided an opinion that the Veteran’s bilateral hip strain is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, proximately due to or the result of the Veteran’s service connected condition.” The examiner stated that there was no objective evidence of a chronic hip condition or disability that was found in the claims file during or after service and no nexus has been established. The Board finds that the November 2019 examiner provided insufficient rationale for the opinion that the Veteran’s bilateral hip condition is less likely than not related to his service-connected left knee condition. The examiner primarily based the negative opinion on the lack of documentation of a chronic hip condition in the record and neglected to consider the Veteran’s statements concerning symptoms experienced in service and continued after service. Concerning this, the Veteran reported at the examination that during active, he injured in left knee during training and ever since that time, he has been having pain in both hips that has never gone away. During his March 2019 Board hearing, the Veteran testified that he had many falls due to his left knee and believed that led to his hip issues. Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, the VA examiner could have addressed whether the Veteran’s claimed symptoms were consistent with her complaints through the years, or whether the complaints are consistent with the current disorder. Instead, the examiners determined, incorrectly, that lack of treatment records are the only evidence which can provide the basis for an opinion concerning etiology. The examiner merely states that “no nexus has been established.” However, this rationale is a restatement of the opinion and does not add any explanation for the basis of such opinion. To be adequate, a medical opinion must do more than state a conclusion that etiology of a disability is unknown or unknowable; rather, the medical examiner must support his or her conclusion with sufficient rationale and explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that “the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the doctor’s opinions.”). Finally, the examiner did not address whether the bilateral hip condition was aggravated by the service-connected left knee disability. The United States Court of Appeals for Veterans Claims recently held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). Therefore, the instructions of the previous remand were not fully complied with, as required by Stegall v. West, 11 Vet. App. 268, 271 (1998) (“RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance.”). Consequently, a new medical opinion is required to adequately decide the merits of the claims. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any updated records from the VA Medical Center (VAMC) in Grand Junction, Colorado, dated from March 2014 to the present. All records and/or responses received should be associated with the claims file. 2. Thereafter, forward the Veteran’s claims file to an examiner with the appropriate expertise to obtain a supplemental opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s currently diagnosed bilateral hip disability (i) is related to his service; (ii) is proximately due to the Veteran’s service-connected left knee disability; or (iii) is aggravated by the Veteran’s service-connected left knee disability. In rendering the requested opinion and rationale, the examiner must note that the fact that there is no documentation of treatment in service is not necessarily fatal to the Veteran’s claim and cannot be the only basis by which to reject a possible nexus to service. Aggravation is defined for legal purposes as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be “permanent” worsening of the nonservice connected disability. The examiner must provide separate findings and rationales relating to causation and aggravation. Any opinion expressed should be accompanied by a complete rationale that is specific to the Veteran. 3. After completing the above, readjudicate the claims. If the benefits sought on appeal remain denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.