Citation Nr: 22005455 Decision Date: 02/02/22 Archive Date: 02/01/22 DOCKET NO. 15-11 299 DATE: February 2, 2022 REMANDED Service connection for bilateral hip disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 to October 1969. This matter is on appeal from a February 2014 rating decision. This matter was last remanded by the Board of Veterans' Appeals (Board) in August 2020 for a VA examination and medical opinion. The Veteran underwent a VA examination in November 2021 and was diagnosed with residuals of osteoporosis and ankylosed hip joints bilaterally. The Board finds that the November 2021 VA medical opinions contain multiple deficiencies that renders them inadequate. Initially, the examiner's negative direct service connection opinion ignores the Veteran's statements regarding a continuity of hip pain since a documented in-service injury during active duty in October 1967 when the Veteran fell during basic training exercises with a 70-pound pack on his back. Next, the examiner's negative aggravation opinion with respect to secondary service connection was based on the inaccurate factual premise that there were no service treatment records (STRs) available to review when there were STRs associated with the claims file when this opinion was authored. Moreover, the negative aggravation finding was not supported by any rationale or explanation. In addition, the examiner's negative opinion regarding proximate causation of bilateral hip disabilities by a service-connected lumbar spine disability is conclusory and is not supported by a rationale. Further, the examination report indicates that the Veteran was physically unable to undergo hip x-rays which appears to have been inappropriately weighed as negative evidence in the medical opinion. The mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the above has been completed to the extent possible, obtain addendum medical opinions from a physician regarding the etiology of the Veteran's bilateral hip disabilities. The claims file must be reviewed, and a notation made on the examination report that the claims file was reviewed. Only schedule an examination, if indicated as necessary by the examiner. (a.) Are the Veteran's bilateral hip disabilities (residuals of osteoporosis and ankylosed bilateral hip joints) directly related to his service, to include any in-service injuries, specifically the in-service fall? Why or why not? (b.) Are the Veteran's bilateral hip disabilities proximately due to or caused by a service-connected lumbar spine disability? Why or why not? (c.) Are the Veteran's bilateral hip disabilities aggravated by his service-connected lumbar spine disability? Why or why not? (Note that aggravation means any incremental increase in disability in non-service-connected disabilities resulting from service-connected conditions). In providing these opinions the examiner MUST consider and address the Veteran's reports of hip pain originating during service due to an injury during basic training involving a 70-pound pack in October 1967 and the medical implications of an October 1967 letter from a Dr. J.H.L II stating, "In addition to spina bifida, there is present a lumbar scoliosis with a pelvic tilt and clockwise rotation of the 5th lumbar vertebra. This indicates a pelvis under mechanical stress, possibly due to a weakened sacral base." (Continued on the next page) *The examiner is informed that a positive opinion indicating a nexus to service does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus to service, the examiner should make a determination favorable to the Veteran. The examiner is asked to provide the underlying reasons for all opinions expressed with reference to medical principles to support their conclusions. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.