Citation Nr: 21041809 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 10-35 000 DATE: July 10, 2021 REMANDED Entitlement to service connection for left hip condition, to include as due to undiagnosed illness, is remanded. Entitlement to service connection for right hip condition, to include as due to undiagnosed illness, is remanded. REASONS FOR REMAND The Veteran had active military service from October 1998 to September 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2014 decision, the Board denied the Veteran's claim of entitlement to service connection for a left hip disorder but remanded his claim of entitlement to service connection for a right hip disorder so that additional development could be undertaken. That decision was appealed to the United States Court of Appeals of Veterans Claims (Court). A September 2015 Joint Motion for Partial Vacatur and Remand (Joint Motion) was issued in which the parties agreed that the Board erred by not considering a May 2007 private medical record that was potentially relevant and material to the Veteran's left hip claim insofar as it reported the Veteran's complaint of low back pain, tingling in the right leg, and pain in both legs. Meanwhile, the remanded right hip claim underwent additional development at the RO level. The claims were returned to the Board and have since been remanded on several occasions for additional development. The Board notes that in January 2021 correspondence, the Veteran's representative requested an additional 90 days to submit argument and evidence. The Board delayed adjudication as requested but notes no additional argument or evidence was received. The Veteran seeks entitlement to service connection for a left hip condition and a right hip condition. Unfortunately, the Board finds that these claims must again be remanded for additional development before they can be adjudicated on the merits. The Veteran was afforded a VA Hip and Thigh Conditions examination in March 2016, at which time he underwent radiological imaging studies that revealed degenerative changes in the bilateral hips. Specifically, the imaging studies revealed that visualized osseous elements of the left hip appeared intact and in alignment, with some degenerative enthesophyte formation noted at the left inferior pubic ramus region; the impression was "some mild degenerative changes about the left hip." The studies also revealed that the osseous elements of the right hip appeared intact and in alignment, although some enthesophyte formation was noted along portions of the right inferior pubic ramus region; the impression was "some mild degenerative changes about the right hip." The Veteran was provided with another VA examination in November 2017, at which time the Veteran again underwent radiological imaging studies of the bilateral hips. However, on this occasion, there was no degenerative or traumatic arthritis documented, and no significant diagnostic findings on the X-ray. These claims were remanded by the Board in May 2018 in order to obtain an opinion from a radiologist, or other appropriate medical personnel, clarifying whether the November 2017 radiological imaging studies report represented an improvement of the degenerative changes of the bilateral hips noted in the March 2016 radiological imaging studies, or rather a correction of previous misdiagnoses. Pursuant to the Board's May 2018 remand directives, the Veteran underwent VA examination in January 2019, where the examiner concluded that the Veteran did not have right and left hip conditions. Crucially, however, in response to the Board's question as to the different radiological findings documented in March 2016 and November 2017, the examiner indicated that, "Although the x-ray results of the left and right hip completed on 03/28/2016 showed degenerative changes of the left and right hip, these changes could not be confirmed on 01/09/2019. In order to determine if the left and right hip degenerative changes noted on 03/28/2016 are accurate, resolved, or in error, a more definitive diagnostic evaluation, such as an MRI [magnetic resonance imaging], is necessary." Significantly, the Veteran was not provided the MRI necessary to find the answer to the Board's question at that time. As such, in June 2020, the Board again remanded the claims with explicit instructions to "conduct any medical procedure necessary, including providing the Veteran an MRI, to determine whether the November 2017 x-ray report [showing an absence of degenerative changes of the right and left hip] represents an improvement of the degenerative changes noted in the March 2016 x-ray report, or whether the normal November 2017 x-ray report represents a correction of an error in the prior results." (Emphasis added). The VA examiner was also asked to opine as to whether the Veteran had a right hip and/or left hip condition that was distinct from his service-connected neurological condition of the bilateral lower extremities; and, if so, whether this disability was caused or aggravated by his service-connected back disability. Additionally, the examiner was asked whether any right hip and left hip disability pattern was best described as an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology. Pursuant to the Board's June 2020 Remand directives, the Veteran was provided with another VA examination in August 2020, this time conducted by an advanced practice registered nurse. Again, the Veteran underwent radiological imaging studies of the bilateral hips, but no MRI was conducted. Significantly, the examiner found that there was "no medical evidence of a documented hip disability," yet still described the Veteran's right and left hip symptomatology as "a disease pattern with a clear and specific diagnosis not impacted by environmental changes." The examiner then concluded that any right and left hip symptomatology was less likely than not proximately due to or the result of the Veteran's service-connected back disability. In support of this conclusion, the examiner simply stated that "these are two separate conditions" and "there is no medical evidence of a documented hip disability." The RO deemed that the August 2020 VA examination report failed to comply with the Board's remand instructions, failed to provide an adequate rationale for its conclusions, and contained conflicting information. As such, the RO requested an addendum medical opinion. An addendum opinion was obtained in December 2020, this time written by a physician assistant. With respect to reconciling the March 2016 imaging studies which found degenerative changes of the bilateral hips with the November 2017 imaging studies which found no degenerative changes of the bilateral hips, the examiner stated, "The interpretation between radiologists can be up for debate, but generally arthritis or degenerative changes would not be expected to clinically resolve. If a determination is needed an MRI will need to be ordered to eliminate any doubt." Again, no MRI was obtained. This constitutes non-compliance with the Board's previous Remand instructions of May 2018 and June 2020. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders). The December 2020 examiner assessed the Veteran as having "derangement of the hip which is diagnosed as bilateral hip strain." The examiner further opined that this disability was a disease with a clear and specific etiology, and would not be due to an undiagnosed illness. Additionally, the examiner indicated that the Veteran's hip disability was a primary injury, and while the records revealed sciatica in the left lower extremity, "this condition could have overlap symptoms, however, would not be the etiology of the bilateral hip strain." Finally, the examiner opined that, "The hip conditions are distinct and separate from the back condition. The injury of the hip represents an overuse or trauma injury and would be due to something intrinsic to the hip and not due to a non-contiguous body part, in this case the back. The derangement of the hip is less likely than not proximately due to or aggravated by the back condition." In its December 2020 Supplemental Statement of the Case, the RO did not mention that no MRI was conducted to eliminate any doubt as to the presence of degenerative arthritis in the bilateral hips, and instead conceded that the Veteran had arthritis and limited motion of the bilateral hips. However, the RO then used the December 2020 examiner's negative nexus opinion to continue the denial of the Veteran's claims. Significantly, however, this negative nexus opinion was relevant to the examiner's diagnosis of bilateral hip strain, as the examiner found no current evidence of bilateral hip arthritis. The Board finds that taking a negative nexus opinion rendered specifically with respect to a diagnosis of bilateral hip strain and applying it instead to a diagnosis of bilateral hip arthritis is not appropriate. While the record is now clear that the Veteran has been diagnosed as having bilateral hip disabilities which are distinct from his service-connected neurological conditions of the bilateral lower extremities, it is ambiguous as to whether these disabilities should be diagnosed as hip strains or as degenerative arthritis of the hips. If they are diagnosed as degenerative arthritis of the hips, then a nexus opinion is needed as to the likelihood that the arthritis was caused or aggravated by any other service-connected disabilities. Multiple VA examiners have now recommended that the Veteran be provided with MRI to definitively ascertain whether there is degenerative arthritis in his bilateral hips, yet no MRI has been conducted. As such, on Remand, the Veteran must be provided with another VA examination (to include an MRI) in order to comply with the Board's May 2018 and June 2020 remand directives. See Stegall, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any bilateral hip conditions. The Veteran's claims file must be made available to the examiner for review in connection with the examination. The examiner must take a complete history from the Veteran. All indicated tests and studies (to include an MRI of the bilateral hips) should be completed. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then he or she should clearly explain why that is so. a. Specifically, the examiner should conduct any medical procedure necessary, including providing the Veteran with an MRI, to determine whether the November 2017 radiological imaging studies (showing an absence of degenerative changes of the right and left hip) represented an improvement of the degenerative changes of the bilateral hips noted in the March 2016 radiological imaging studies, or whether the normal November 2017 imaging studies represented a correction of an error in the prior March 2016 results. b. Then, opine as to whether the Veteran's diagnosed disabilities of the right hip and left hip are at least as likely as not (50 percent or greater probability) caused by his service-connected lumbar strain, neurological condition of the left lower extremity, and/or neurological disorder of the right lower extremity (to include any altered gait or abnormal walking pattern caused by these disabilities). c. Then, opine as to whether the Veteran's diagnosed disabilities of the right hip and left hip are at least as likely as not (50 percent or greater probability) aggravated (worsened beyond natural progression) by his service-connected lumbar strain, neurological condition of the left lower extremity, and/or neurological disorder of the right lower extremity (to include any altered gait or abnormal walking pattern caused by these disabilities) The examiner must provide a thorough rationale for his or her conclusions. The term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that the examiner's expert opinion, is as medically sound to find in favor of the proposition as it is to find against it. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.