Citation Nr: 23014530 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 18-49 104 DATE: March 9, 2023 REMANDED Entitlement to service connection for a left hip condition, to include as secondary to the Veteran's service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1983 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a November 2021 Board hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing is of record. Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Left Hip In response to the Board's April 2022 Remand, the RO obtained a May 2022 VA Hip and Thigh Conditions examination, with May 2022 VA medical opinions regarding the etiology of the Veteran's claimed left hip condition. However, the Board finds the opinions to be inadequate for adjudication purposes. In proffering their opinion on direct service connection, the May 2022 examiner did not provide a "reasoned medical explanation" for the proffered opinion. The examiner merely noted that the arthritis was not related to any injuries the Veteran experienced in service without explanation, or citation to any evidence in the record or medical treatise. Further, the examiner was instructed to discuss whether the Veteran's left hip condition was secondary to his service-connected disabilities, including his bilateral foot, bilateral knee, and lower back disabilities. The Board notes that the examiner did not provide a nexus opinion regarding whether the Veteran's left hip was proximately due to, or aggravated by, his service-connected left knee disability. The examiner only proffered opinions with regard to the Veteran's right knee, lower back, and bilateral feet disabilities. However, these opinions are inadequate for adjudication purposes. Of note, secondary service connection is warranted for a current disability that is either proximately caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.301(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). Aggravation by a service-connected disability is not the same as proximate causation by a service-connected disability. However, in their negative nexus opinions regarding aggravation, the examiner's rationale focused on how arthritis in one joint could not cause arthritis in another. The rationale did not adequately address the question of aggravation. Based on the foregoing, the Board finds a remand is necessary to provide the Veteran with an adequate examination that addresses the etiology of his claimed left hip condition. Finally, the Board notes that the record for review may be incomplete. The Board notes that the most recent VA treatment records uploaded to the Veteran's claim's file are from 2011. Records of his VA treatment are constructively before VA. As such, remand is necessary to obtain updated medical records. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's issue on appeal. Specifically, the RO should attempt to obtain/locate any outstanding VA or private treatment records. If needed, the RO should contact the Veteran and ask him to better identify and/or submit the records. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran a VA examination by a VA examiner who has yet to examine the Veteran, with sufficient expertise to address the etiology of the Veteran's left hip disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion regarding the following: - Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left hip condition is etiologically related to his active-duty service, to include as due to his parachute jumps in service. - Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left hip disability is proximately due to, or aggravated by, his service-connected disabilities, to specifically include, but not limited to, his bilateral foot, bilateral knee, and lower back condition disabilities. The Board notes that aggravation need not be a permanent worsening of the disability. A temporary worsening of a disability may constitute aggravation. For purposes of this opinion, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. The examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical treatment and examination evidence of record, including the Veteran's November 2021 hearing testimony and the October 2019 private medical opinion from Dr. M.V.R. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.