Citation Nr: 21006307 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-36 209 DATE: February 3, 2021 REMANDED Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a right thigh condition is remanded. Entitlement to service connection for a left thigh condition is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1965 to March 1967. These matters were last before the Board in March 2020, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. The Veteran previously testified at a February 2020 videoconference hearing. The Board remanded all three of the claimed conditions in order to schedule the Veteran for a new VA examination for the purpose of setting forth a diagnosis or diagnoses that accounted for the Veteran’s documented lower extremity musculoskeletal symptomatology and then eliciting an addendum opinion as to the likely etiology of the claimed conditions. Specifically, the chosen examiner was directed to consider lay testimony suggesting that the Veteran continued to experience bilateral hip pain and lower extremity weakness following a documented injury in service in September 1965. In a November 2020 examination, the Veteran was diagnosed with a bilateral hip strain as well as bilateral trochanteric pain syndrome. The examiner then opined that it was less likely than not that the bilateral thigh and right hip conditions were incurred in or otherwise attributable to service, on the grounds that there was no documentation of complaints, treatments or diagnosis of a bilateral hip condition in service. The examiner also stated that the Veteran experienced hip and thigh symptomatology that may be attributable to a scrotal injury. Following the November 2020 examination, the AOJ requested that the VA examiner set forth an addendum opinion to address the likelihood that the bilateral hip and thigh conditions were proximately attributable to or aggravated by a service-connected disability, to specifically include the newly-service connected varicocele of the right testicle. In a December 2020 addendum opinion report, the examiner found that it was less likely than not that the bilateral hip and thigh conditions were proximately caused or aggravated by a service-connected disability. In support thereof, the examiner stated that “there is not enough to support the service-connected condition was aggravated beyond a natural progression.” In addition, regarding direct causation between the bilateral hip and thigh conditions and the right testicle varicocele, the examiner merely stated that there was not sufficient evidence to support a nexus between the conditions. The Board cannot rely on these opinions for a variety of reasons. To begin, the examiner’s determination that it was less likely than not that the bilateral hip and thigh conditions were related to service was based on the incorrect factual premise that there was no documentation of complaints, treatment, or diagnosis of a bilateral hip condition in service. By contrast, the Board specifically noted in the prior remand that the Veteran sought treatment in service in September 1965 for bilateral hip pain following an injury he sustained playing football. In addition, the VA examiner offered no actual rationale for the determination that the bilateral hip and thigh conditions were not proximately caused by the right testicle varicocele other than merely stating that there was insufficient evidence to support such a determination. This is inadequate for the Board’s purposes. Finally, the VA examiner’s rationale for the determination that the bilateral hip and thigh conditions were not aggravated by the right testicle varicocele improperly discussed the aggravation of the right testicle varicocele, when the operative query is the potential aggravation of the bilateral hip and thigh conditions. As such, the Board also cannot rely on this portion of the VA examiner’s opinion. For these reasons, remand is necessary for the AOJ to secure an addendum opinion that complies with the Board’s remand instructions as they pertain to the claimed bilateral thigh and right hip conditions. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Provide the claims file to the November 2020 VA examiner, or to another qualified VA medical professional if that individual is not available, in order to secure an addendum opinion as to the likely etiology of the claimed right hip and bilateral thigh conditions. The Veteran’s entire claims file, including a copy of this remand, must be made available to the examiner for review. The VA examiner should confirm the claims file review. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the bilateral thigh and/or right hip conditions are etiologically related to service. The lay contentions of record as to injury and onset must be fully contemplated by this opinion, and, if the examiner has any disagreement with the Veteran’s assertions, this must be fully explained. Specifically, the examiner must consider, and comment upon as necessary, the testimony of the Veteran’s brother during the February 2020 hearing corroborating the Veteran’s account of lower extremity musculoskeletal symptomatology since service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that the bilateral thigh and/or right hip condition was caused or aggravated by one or more service-connected disabilities (listed in a November 2020 rating decision). The term “aggravated by” refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the bilateral thigh and/or the right hip condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. Moreover, the examiner should address the prior statement on the November 2020 opinion that the Veteran experienced “symptomatology that may be attributable to a scrotal injury.” All opinions must be supported by a thorough rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.