Citation Nr: 21016235 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 190513-8923 DATE: March 22, 2021 REMANDED Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1980 to April 1992. These matters came before the Board of Veterans’ Appeals (“Board”) on appeal from an April 2019 rating decision issued by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Veteran timely appealed the April 2019 rating decision denying entitlement to service connection for his right and left hip conditions. The claim was denied in an October 2019 Board decision and timely appealed by the Veteran to the United States Court of Appeals for Veterans Claims (“CAVC”). In August 2020, CAVC granted a Joint Motion for Partial Remand (“JMPR”) which vacated the parts of October 2019 Board decision denying entitlement to service connection for right and left hip conditions and remanded the matters for re-adjudication. In the May 2018 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (“AOJ”) decision on appeal. 38 C.F.R. § 20.301. The Board notes that the evidence was added to the claims file in December 2020, during a period of time when new evidence was not allowed. As the Board is remanding the claim for further development, this additional evidence will be considered by the RO in the adjudication of the claim. Additionally, the Board also notes that there is no power of attorney in the Veteran’s file. The Veteran was sent a letter in February 2021, requesting clarification as to whether he wanted to appoint a representative, to which he did not respond. As noted in the correspondence, the Board will therefore assume that the Veteran wishes to proceed pro se, hence, he is currently unrepresented. Entitlement to service connection for right hip and left hip conditions is remanded. In the JMPR the parties agreed that no notification was sent to satisfy 38 C.F.R. § 3.159, after the Veteran filed the claim, so the Board erred in not remanding the case for issuance of letter. The parties also agreed that the Board also erred in not addressing the theory of secondary service connection for the Veteran’s bilateral hip conditions as secondary to service-connected lupus, when the Veteran reported to Dr. O’Halloran, a private physician, that lupus caused difficulty in movement in service, and necrosis of the left hip and generalized degenerative disease is secondary to lupus. The Board notes that the Veteran’s right to submit additional arguments was acknowledged in the JMPR. Consequently, a letter was sent to the Veteran in September 2020, and the Veteran has submitted additional arguments in support of the claim in December 2020. The Veteran contends that service connection for his bilateral hip condition should be granted as secondary to his service-connected lupus and referred to in-service treatment records, indicating notation of joint problems and diagnosis and treatment of lupus, including intravenous chemotherapy for 2 years in service. The Veteran also stated that he has undergone two hip replacements surgeries and was medically discharged from service because of his lupus. He requested to obtain all service treatment records and private treatment records, and associate with the claims file. The Board also notes that there is notation of persistent lower back pain in February 1989, and January 1989 service treatment records. The Veteran has been diagnosed with degenerative joint disease of left hip and right hip by Dr. Paul Yocom in August 2018. VA treatment record from January 2017 indicates that the Veteran has osteonecrosis and osteoarthritis of hips, and September 2017 treatment record indicates that the Veteran has undergone hip replacement due to avascular necrosis. The VA treatment record from January 2018 indicates the existence of bilateral osteonecrosis for at least 10 years. The Veteran has never been afforded a VA medical examination or opinion regarding whether the bilateral hip condition is related to the Veteran’s service or caused or aggravated by his service-connected lupus. Accordingly, the Board concludes that the Veteran should have been afforded a VA examination and medical opinion which should address the nature and etiology of the Veteran’s right and left hip conditions. The RO failure to obtain an adequate VA examination is a pre-decisional duty to assist error that necessitates a remand for development. The matters are REMANDED for the following action: 1. Send the notification to the Veteran under 38 C.F.R. § 3.159 for providing necessary information to substantiate the claim. Obtain any outstanding VA and private treatment records. Request the Veteran to assist VA with locating these records, if possible. Associate these records with the claims file. 2. Schedule the Veteran for a VA examination to evaluate his right and left hip conditions. Then, forward the claims file and a copy of this remand to the examiner for an opinion. The examiner is advised to review the pertinent evidence in private, military and VA medical treatment records, the Veteran’s lay statements and his complaints of joint and hip pain, including complaints of persistent lower back pain during service. The examiner is asked to opine whether it is “at least as likely as not” that the Veteran’s bilateral hip disability was incurred in or caused by the active service. The examiner is also asked to opine whether the Veteran’s bilateral hip condition is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by his service-connected lupus. (Continued on the next page)   A clear rationale must be provided for all opinions expressed. All appropriate tests and studies should be undertaken. The entire claims file, including a complete copy of this remand and the lay statements made by the Veteran should be reviewed. All pertinent symptomatology and findings must be reported in detail. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. The Veteran is informed that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655. If the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.