Citation Nr: 23019646 Decision Date: 03/30/23 Archive Date: 03/30/23 DOCKET NO. 18-03 202 DATE: March 30, 2023 REMANDED Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected left and right knee disabilities, for accrued benefits purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to September 1978, with service in the Republic of Vietnam. His awards and decorations include, in part, the Combat Infantryman Badge, Purple Heart, Silver Star, and a Bronze Star with Valor. The Veteran died in June 2017. The Veteran's surviving son is the Appellant with respect to the matters on appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2022 decision, the Board remanded this claim for further development. Unfortunately, another remand is warranted in this case as there has not been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected left and right knee disabilities, for accrued benefits purposes, is remanded. The Appellant contends the Veteran's bilateral hip disabilities are related to the Veteran's active-duty service. Alternatively, the Appellant contends the Veteran's service-connected left and right knee disabilities caused or aggravated the Veteran's left and right hip disabilities. In a January 2018 buddy statement, the Appellant noted that the Veteran had used multiple canes, walkers, and a wheelchair and contended that such must have led to his disability. As noted above, the Veteran served in Vietnam and received numerous awards and decorations for his service, including, in part, a Purple Heart and Combat Infantryman Badge. The Veteran's military records indicate that he was in a helicopter crash and was shot in the left leg. Further, the Veteran's VA treatment records indicate he underwent a right hip replacement in 2010 and a left hip replacement in 2013; he is service connected for left and right knee disabilities; and he repeatedly sought medical treatment for his knees and hips, often simultaneously. In January 2022, VA provided a medical opinion. The examiner opined that the Veteran's disability was less likely than not related to service. He explained that although the service treatment records indicate that the Veteran was in a helicopter crash, there was no noted hip pain. The 1978 separate medical examination was also silent for a hip condition. Post service records do not show that his hip was an active problem until 2004. Accordingly, there was insufficient evidence regarding a chronic disability for the right or left hip considering the large gap of treatment for the hips of more than 20 years after separating. The examiner also opined that the Veteran's disability was not caused by or aggravated by the Veteran's service-connected bilateral knee disability. He explained that according to the American Academy of Orthopedic Surgeon website hip osteoarthritis is caused by previous hip injury, increasing age, family history of osteoarthritis, and improper formation of the hip joint at birth. This medical opinion is inadequate for adjudicative purposes. Regarding direct service connection, the examiner relied on an inaccurate factual basis in finding that the Veteran failed to experience hip pain until 2004. Furthermore, the examiner based his opinion solely on a lack of medical treatment. Regarding secondary service connection, the examiner failed to address the Appellant's lay assertions regarding use of cane, walker, and/or a wheelchair, and provided a conclusory statement regarding aggravation of the hip disabilities with no supporting rationale. As such, a remand for an adequate opinion is warranted. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. After any additional records are associated with the claims file, the AOJ should arrange for a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's bilateral hip disabilities. The examiner should review the claims file. The examiner is requested to answer the following: (a.) opine whether it is likely (at least an approximate balance of negative and positive evidence) that the bilateral hip disabilities occurred during or was otherwise caused by events during the Veteran's military service. (b.) opine whether it is likely (at least an approximate balance of negative and positive evidence) that the Veteran's bilateral hip disabilities were (i) caused or (ii) aggravated by the Veteran's service-connected bilateral knee disabilities. Temporary aggravation is sufficient for secondary service connection. Ward v. Wilkie, 31 Vet. App. 233 (2019). In providing the requested opinions, the examiner should address: - August 2004 VA treatment records indicating a many-year history of lateral hip pain in addition to analytic gait associated with knee condition; - treatment for the Veteran's service-connected bilateral knee disability, to include the use any canes, walkers, and/or a wheelchair. The examiner should specifically consider and address all relevant medical and other objective evidence and the Veteran's lay statements concerning symptoms.? The clinician is advised that the Veteran (and the Appellant) are competent to report observable symptoms and history, and that such lay reports must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state and explain why. The?examiner?is also?reminded?that?the?absence of documented treatment in service or thereafter is not fatal to a service connection claim, and?the?absence of evidence in?the?service treatment records is an insufficient?basis, by itself, for a negative opinion. Thus,?the?examiner?is to consider?the?totality of?the?record, and not just?the?absence of clinical treatment, in weighing?the?Veteran's statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Specifically, the examiner must indicate whether there was a further need for information or testing, or whether an opinion could?not?be rendered due to limitations of knowledge in the medical community at large. (Continued on the next page) ? After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Appellant's claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, furnish the Appellant a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.