Citation Nr: 21029322 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 11-26 129 DATE: May 13, 2021 REMANDED The issue of entitlement to service connection for an unspecified hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1990 to February 1994 and from August 1995 to December 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2016, the Board remanded the case for the scheduling of a hearing. Thereafter, in December 2016, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Following the Board hearing, the case was remanded for additional development in April 2017. Thereafter, in November 2017, the Board denied service connection for depression, an unspecified hip disability, and a right knee disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Joint Motion for Remand (JMR), the Secretary and the Veteran moved the Court to vacate and remand the Board's November 2017 decision. The Court granted the JMR later in August 2018. The case returned to the Board and, in March 2019, the Board remanded the issues of service connection for depression, an unspecified hip disability, and a right knee disability pursuant to the JMR. Subsequently, in a March 2020 rating decision, a VA RO granted service connection for depression. This grant of service connection constituted a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Accordingly, the issue of service connection for depression no longer remained in appellate status. Then, in May 2020, the Board remanded the issues of service connection for a right knee disability and unspecified knee disability for additional development. Following the May 2020 Board remand, a VA RO issued a rating decision in March 2021 awarding the Veteran service connection for a right knee disability, characterized as patellofemoral pain syndrome with knee strain. Accordingly, service connection for a right knee disability is also no longer in appellate status as the March 2021 rating decision constituted a full grant of the benefit sought on appeal with respect to that issue. See Id. Service Connection for an Unspecified Hip Disability Although the Board regrets the additional delay, it finds that remand of this service connection issue is warranted due to a lack of substantial compliance with prior remand directives from May 2020. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, in the May 2020 remand, the Board directed that the Veteran be provided additional medical opinions concerning her right knee and hip disabilities on remand. These opinions were to be provided by an independent expert in orthopedics from outside of VA pursuant to 38 U.S.C. § 5109. Specific to the issue of service connection for an unspecified hip disability, the independent expert was to provide an opinion only if the opinion obtained for the right knee was supportive of a grant of service connection as the Veteran had contended that her right knee disability caused or aggravated a current right hip disability. Following the Board's May 2020 remand, additional medical opinions for the right knee and hip were obtained in March 2021. The March 2021 opinion regarding the right knee supported a grant of service connection while the opinion pertaining to the right hip was negative. However, the Board notes that the March 2021 opinion regarding the hip was by a VA contract-examiner, and not an independent medical expert who had no affiliation with the Department. Accordingly, the Board remands the issue of service connection for an unspecified hip disability once again for the provision of an additional medical opinion. The matter is REMANDED for the following action: 1. Notify the Veteran and her representative that VA is requesting an advisory medical opinion pursuant to 38 U.S.C. § 5109 regarding entitlement to service connection for an unspecified hip disability. Then, pursuant to 38 U.S.C. § 5109, forward the Veteran's claims file to a non-VA, independent medical expert (i.e., neither a VA examiner nor a VA contract examiner (such as from QTC Medical Services)) in the field of orthopedics. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the expert. The expert should then address the following: (a) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's right knee disability proximately caused the Veteran's right hip disability. (b) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's right knee disability aggravated (worsened, even temporarily, beyond natural progression) the Veteran's right hip disability beyond its natural progression. In providing responses to parts (a) and (b), please directly address the Veteran's contention that she developed right hip pain due to limping and overcompensating for her right knee injury. In offering each opinion, the expert should consider medical and lay evidence dated both prior to and since the filing of the claim. For any opinion rendered, the expert should provide a complete rationale. If the expert cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 2. Following receipt of the opinion requested in Item (1), furnish a copy of the opinion to the Veteran and her representative and allow them 30 days to submit any response. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.