Citation Nr: 21007898 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 10-47 302A DATE: February 11, 2021 REMANDED Entitlement to service connection for chronic left hip subtrochanteric bursitis, to include as secondary to right hip subtrochanteric bursitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1996 to September 1996 and from June 2004 to August 2005, with additional service in the Army Reserve. In December 2019, the Board issued a decision that remanded, in pertinent part, the Veteran’s claim for service connection for a chronic left hip subtrochanteric bursitis for a new VA examination. The Veteran underwent a VA examination in February 2020. A Supplemental Statement of the Case was issued in April 2020. Additional development is required for compliance with the Board’s remand directives to decide the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the December 2020 Board remand directives asked the examiner to address whether it is at least as likely as not, (a probability of 50 percent or greater), that any diagnosed left hip disorder was caused or aggravated by the service-connected right hip and/or lumbar spine disabilities. However, in reviewing the April 2020 opinion, the Board finds these directives were not followed with substantial compliance by the examiner. See id. For example, the examiner found the Veteran’s left hip conditions are less likely than not incurred or due to service, but did not address whether any diagnosed left hip disorder was at least as likely as not either caused by or aggravated by the service-connected disabilities. Therefore, the Board finds that a remand is necessary for an addendum opinion, which specifically addresses whether it is at least as likely as not that any diagnosed left hip disorder was caused or aggravated by the Veteran’s service-connected right hip and/or lumbar spine disabilities. The Board is aware that the Veteran has attempted to cure the above defect by submitting his own medical opinion; however, the Board still finds that a remand is warranted. The private opinion is based on a review of the evidence and not a physical examination of the Veteran, and the Board finds that a physical examination is needed in order to obtain an informed opinion. In the February 2020 VA examination report, the examiner documented that the Veteran did not cooperate during the examination. The Veteran is notified that absent a showing of good cause, refusal to participate or cooperate during a VA examination is akin to a failure to report for a VA examination under 38 C.F.R. § 3.655, in which case, as this is not an original claim, the claim shall be denied. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to obtain a medical opinion regarding whether the left hip disability is caused or aggravated by the service-connected right hip disability and/or the bulging disc, L5-S1. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: • The Veteran served on active duty from January 1996 to September 1996 and from June 2004 to August 2005, with additional service in the Army Reserve. • The Veteran is service connected for right hip subtrochanteric bursitis and a bulging disc, L5-S1. • The Veteran is claiming that the service-connected right hip subtrochanteric bursitis and/or a bulging disc, L5-S1, has caused or aggravated a left hip disability. Alternatively, he has alleged that the left hip pain started in service, to include alleging that the onset of the left hip pain began following an improvised explosive device (IED) explosion during his second period of active duty. However, the Board finds such statement about an in-service left hip injury not credible. Thus, the examiner should not accept that statement as true. The Board is not asking the examiner to provide an opinion as to whether the left hip disability had its onset in service because it does not accept an in-service disease or injury as true. • An August 2012 VA hip examination report shows that the examiner diagnosed subtrochanteric bursitis of both hips. See VBMS entry with document type, “VA Examination,” receipt date 08/07/2012. • A May 2013 VA examination report for the Veteran’s service-connected lumbar spine disability shows that muscle strength with right and left hip flexion was 5/5. See VBMS entry with document type, “VA Examination,” receipt date 05/30/2013, at p. 9. • A November 2015 VA hip examination report shows that the examiner documented that the Veteran denied left hip pain at the time of the examination. The examiner still provided clinical findings related to range of motion of and strength testing on the left hip. See VBMS entry with document type, “C&P Exam,” receipt date 11/02/2015 with “DBQ MUSC Hip & Thigh” in the subject field. • An April 2018 VA hip examination report documents the clinical findings made by the examiner pertaining to both hips. See VBMS entry with document type, “C&P Exam,” receipt date 04/27/2018, with “DBQ MUSC Hip & Thigh” in the subject field. • In an April 2018 medical opinion, the examiner attributed the left hip disability to service based on the false story provided by Veteran of having injured his left hip in service. Thus, this opinion is based on an inaccurate factual premise. The examiner had also been asked about whether the left hip disability was caused or aggravated by the service-connected right hip disability and/or the bulging disc, L5-S1, but did not answer that question. See VBMS entry with document type, “C&P Exam,” receipt date 04/27/2018, with “DBQ Medical Opinion” in the subject field. • A February 2020 VA examination report shows that the Veteran reiterated his report of developing left hip problems during service following an IED incident, which, again, the Board finds is not credible. He has reported multiple facts that are not supported by the service treatment records including statements he made while in service. The examiner documented that the Veteran did not cooperate with the examiner in his attempt to evaluate the right and left hip disabilities by resisting range of motion testing. Thus, there are a lack of clinical findings documented within the February 2020 examination report. See VBMS entry with document type, “C&P Exam,” receipt date 02/07/2020 with “DBQ MUSC Hip & Thigh” in the subject field. • In the February 2020 medical opinion, the VA examiner found that the Veteran’s left hip condition was less likely than not incurred in service based on the lack of evidence of an in-service disease or injury. Like the April 2018 VA examiner, the February 2020 examiner also neglected to address whether the left hip disability was caused or aggravated by the service-connected right hip disability and/or bulging disc, L5-S1. See VBMS entry with document type, “C&P Exam,” receipt date 02/07/2020 with “DBQ Medical Opinion” in the subject field. • In an opinion submitted in August 2020, a private physician, Dr. Mark Shoag, reviewed the Veteran’s VA claims file (he did not physically examine the Veteran) and concluded that it is as least as likely as not that the Veteran’s current left hip dysfunction is related to his service-connected right hip disability and provided a rationale for the conclusion. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 08/20/2020, with “Dr. Mark Shoag” in the subject field, pp. 2 5. • Within the August 2020 opinion, Dr. Shoag wrote, “Since at least 2010, [the Veteran] has required the use of a cane to assist with ambulation due to the impairment of his right hip.” See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 08/20/2020, with “Dr. Mark Shoag” in the subject field, p. 4. • However, the VA treatment records do not support the above fact asserted by Dr. Shoag. VA treatment records in 2010 show he was using a cane, but in June 2016, August 2016, and October 2016, he was documented by VA medical personnel to have a normal gait without using an assistive device. See VBMS entry with document type, “CAPRI,” receipt date 06/07/2018, pp. 139 (October 2016: “Patient comes to the clinic walking without assistance with normal gait pattern.”), 159 (August 2016: “Patient comes to the clinic walking without assistance with normal gait pattern.”), 174 (June 2016: “Normal gait and station without assistive devices.”). • At the time of the April 2018 VA hip examination, the examiner documented that the Veteran was not using an assistive device. See VBMS entry with document type, “C&P Exam,” receipt ate 04/27/2018, p. 8. • October 2014 and April 2019 VA medical records show that the examiner documented that the Veteran did not use an assistive device. See VBMS entry with document type, “CAPRI,” receipt date 06/07/2018, with “#1” in the subject field, pp. 120 (April 2019), 453 (October 2014). • Thus, Dr. Shoag’s statement that the Veteran has been required to use a cane since at least 2010 is not supported by the evidence and found to lack credibility. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following questions: (a.) Is any diagnosed left hip disability at least as likely as not (50 percent or greater likelihood) caused by the Veteran’s service-connected right hip disability and/or bulging disc, L5-S1? Please explain your answer by citing to supporting clinical data and/or medical literature, as deemed appropriate. (b.) If the answer to (a.) is negative, is any diagnosed left hip disability at least as likely as not (50 percent or greater likelihood) aggravated by the Veteran’s service-connected right hip disability and/or bulging disc, L5-S1? (Aggravation is not the same as causation.) Please explain your answer by citing to supporting clinical data and/or medical literature, as deemed appropriate. (c.) If the examiner finds that the service-connected right hip disability and/or bulging disc, L5-S1 aggravates the left hip disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left hip disability. If the examiner is unable to establish a baseline for the left hip disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. Please explain your answer by citing to supporting clinical data and/or medical literature, as deemed appropriate. The examiner is asked to provide a rationale for all conclusions reached with reference to relevant evidence of record and/or medical principles, as appropriate. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton 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.