Citation Nr: 21026551 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-03 569 DATE: May 3, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force from August 1977 to July 1985. In May 2009, the Veteran filed his initial claim for service connection for a bilateral hip disability, and the Department of Veterans Affairs (VA) Regional Office (RO) denied this claim in a November 2009 rating decision. The Veteran did not appeal the November 2009 decision and it became final. In April 2013, the Veteran sought to reopen the claim for his bilateral hip disability and submitted a new claim for service connection for a neck disability. The RO denied the Veteran's petition to reopen his bilateral hip claim as well as the new claim for service connection for a neck disability in a September 2013 rating decision. The Veteran timely appealed. In January 2019, the Veteran testified at a hearing of the Board of Veterans' Appeals (Board) before the undersigned Veterans Law Judge, and a transcript of this hearing is associated with the claims file. In April 2019, the Board issued a decision that found new and material evidence was submitted to reopen the bilateral hip claim and then remanded the claims for service connection for a bilateral hip disability and a neck disability. In September 2020, the Board again remanded the claims for service connection for a bilateral hip disability and a neck disability for further development, and the claims have since returned to the Board for appellate review. 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a bilateral hip disability is remanded. Once again, the Board regrets any additional delay in this matter but finds that a decision cannot be rendered without compliance with the directives listed in the Board's September 2020 remand. In its September 2020 remand, the Board specifically stated when obtaining the new VA examination, the examiner must discuss the Veteran's November 1983 in-service treatment visit and his lay statements concerning his in-service fall and his symptomatology thereafter. This was to be done for both the Veteran's bilateral hip as well as his neck examinations. Upon review of the record in this matter, it is clear that new December 2020 VA examinations were obtained; however, while the examiner touches on the November 1983 in-service treatment visit and discusses a lack of reported hip pain in the treatment records on that date, the examiner failed to address the Veteran's lay statements concerning his in-service fall and any following symptomatology. Said lay statements include a written statement submitted in March 2014, as well as the Veteran's January 2019 testimony, a transcript of which is in the claims file. The examiner cannot ignore the Veteran's lay statements of an in-service injury or event and symptoms suffered after the event, nor can the examiner base their opinion on the absence of in-service corroborating medical records. See Dalton v. Nicholson, 21 Vet. App. 23. 39-40 (2007). Additionally, a remand by the Board confers on the claimant a legal right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. Furthermore, the December 2020 examiner failed to address notations in the Veteran's VA treatment records, notably the August 1997 imaging report noting small osseous bodies at the bilateral superior hip joints or the March 2009 statement that the Veteran had been experiencing hip pain for at least fifteen years. The examiner's failure to address this evidence results in their opinion being based on an inaccurate factual premise and is inadequate for this reason as well. See Reonal v. Brown, 5 Vet. App. 458. 461 (1993). For the reasons set forth above, a remand is required to ensure that the opinions obtained in this matter discuss all relevant evidence of record, to specifically include the Veteran's lay statements concerning his in-service fall and symptoms following the incident, as well as notations in his VA treatment records. Accordingly, these matters are REMANDED for the following action: Obtain an addendum VA opinion from a qualified medical professional to determine the current diagnosis and etiology of the Veteran's claimed neck and bilateral hip disabilities. The entire claims file, including this remand and transcripts of the January 2019 hearing, must be made available to the examiner. The need for further examination or a telehealth interview is left to the discretion of the examiner. The examiner must offer an opinion as to each of the following: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed neck disability had its onset in service or is otherwise related to service. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed bilateral hip disability had its onset in service or is otherwise related to service. In rendering these opinions, the examiner must specifically discuss the following: (a) The August 6, 1997 imaging report in the Veteran's VA treatment records noting osseous bodies in the Veteran's hip joints; (b) The March 10, 2009 notation in the Veteran's VA treatment records reporting hip pain for the last 15 years; and (c) The Veteran's written lay statement received March 26, 2014 and his testimony at the January 2019 hearing detailing his in-service fall as well as symptomatology and circumstances following the incident. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, the examiner must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.