Citation Nr: 21040268 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 10-29 796 DATE: July 3, 2021 REMANDED Entitlement to service connection for a left hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1986 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Veterans Law Judge (VLJ), other than the undersigned, in December 2016. A transcript of the hearing is associated with the claims file. On May 18, 2021, the Veteran was notified that the VLJ who conducted the December 2016 hearing was no longer available to participate in the adjudication of the Veteran's claim. The Veteran was also informed of his right to a new hearing. This letter indicated that if there was no response to this letter within 30 days, the Board would presume that he did not desire another hearing. The Veteran did not respond to such letter within 30 days. Therefore, it is presumed that he does not want another Board hearing. In July 2017, the Board remanded this claim to ensure compliance with due process requirements. In August 2018, the Board denied the claim to entitlement to service connection for left hip disability. As the Board determined that the Veteran did not have a current left hip disability and did not have one at any time during the pendency of the claim or recent to the filing of the claim. In September 2020, the United States Court of Appeals for Veterans Claims (CAVC) issued a memorandum decision, vacating the portion of the August 2018 Board decision that denied service connection for a left hip disability. The parties agreed that a remand was warranted as the Board did not address a December 2010 treatment record where the Veteran sought treatment for "left sided pain," and complained that exercise causes weakness on the left side when determining that the Veteran did not have a current disability. Despite the lack of a formal diagnosis, pain alone may constitute a disability, even without an identifiable underlying pathology, if the pain reached the level of a functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Saunders was interpreted as defining a "disability" as a functional impairment of earning capacity, that applies broadly to include more than just pain. See Martinez-Bodon v. Wilkie, No. 18-3721, 2020 U.S. App. Vet. Claims LEXIS 1523 (Vet. App. August 11, 2020). The Board finds that a medical opinion is needed to determine whether the Veteran's symptoms result in functional impairment of earning capacity. Thus, a remand is required. The matter is REMANDED for the following action: Obtain a medical opinion from a VA examiner to determine the nature and etiology of the Veteran's left hip pain. Copies of all pertinent records must be made available to the examiner for review. If the examiner finds that a physical examination is needed, such should be scheduled. Based on the review of the record, the examiner must address the following: (a.) Specifically identify any diagnosable pathology associated with the Veteran's left side pain including but not limited to symptoms of weakness. (b.) If there is no diagnosable pathology for the left side pain and weakness, the examiner must determine whether there is any objective evidence of pain and weakness resulting in functional impairment. Specifically, do any of these symptoms impair the Veteran's ability to function under the ordinary conditions of daily life, including employment? In answering this question, the examiner should ask the Veteran to explain the effect of these symptoms. (c.) For any diagnosed disability of the left hip or disorder resulting in functional impairment, provide an opinion as to whether it is at least as likely as not (probability of 50 percent or higher) that it had its initial onset in or is otherwise related to active duty service? In answering this, the examiner must specifically consider the Veteran's service treatment records from August 3, 1987 that note the Veteran was bumped by an automobile in a parking lot and from July 6, 1988 that note a fork truck incident. The examiner must also specifically consider the VA 21-4176 dated August 2, 1987 that notes an officer's wife backing into the Veteran. Rationale must be provided for all requested opinions. The opinion should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the Veteran's left hip. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.