Citation Nr: 21042117
Decision Date: 07/12/21	Archive Date: 07/12/21

DOCKET NO. 17-05 687
DATE: July 12, 2021

REMANDED

Entitlement to service connection for right hip condition is remanded.

Entitlement to service connection for left hip condition is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1966 to January1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in December 2019.  A transcript of the hearing is in the Veteran's file.

These matters were previously before the Board in March 2020 and April 2021, at which time it was remanded for further development.  These claims have once again returned to the Board.

A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268 (1998).  Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance.  Id. at 271.

Here, the Board previously remanded the Veteran's claim to obtain a VA examination and etiology opinion, particularly directing the examiner to focus on the Veteran's lay testimony regarding carrying heavy loads in military service as opposed to only discussing the absence of contemporaneous records of treatment in the service treatment records.

The Veteran was provided with a VA examination opinion in May 2021, in which the examiner continued to find that the Veteran's bilateral hip disabilities were less likely than not incurred in or caused by military service.  However, in so doing, the VA examiner again appeared to rely on the absence of contemporaneous records of treatment in the service treatment records and failed to discuss the Veteran's lay contentions.

Accordingly, the Board finds that the VA examiner did not address the issue previously directed by the 2021 Board Remand.  As such, the claims file should be returned to the May 2021 VA examiner for an addendum opinion in which the Veteran's lay contentions regarding carrying heavy loads during service are considered and discussed.  A complete rationale must be provided for any opinions rendered.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hip disability is at least as likely as not related to an in-service disease or injury.  

For the limited purpose of providing the medical opinion it may be assumed the Veteran's reports of hip discomfort in service, and during the interval between service and the early 2000s are credible.  

The examiner should consider and discuss the Veteran's lay complaints, to include contentions of carrying heavy loads during military service.  

A clear and complete rationale should be provided for any opinions expressed.

If the absence of a record of treatment in service or for many years after service is considered significant in formulating the opinion, the reasons for that should be explained. In this regard, it would be helpful if the reviewer were to indicate if the conclusion would differ if he or she accepted the Veteran experienced chronic hip discomfort since service, and the reasons for any differing conclusion.  

2. Readjudicate the appeal.

 

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dodd, Ryan

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.