Citation Nr: 23020161 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 05-29 073 DATE: March 31, 2023 REMANDED Entitlement to service connection for a left hip disability is remanded. REASONS FOR REMAND The Veteran had active military service from August 1970 to February 1972. His awards and decorations include the Combat Infantryman Badge and Bronze Star Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, this case was previously remanded and denied by the Board in November 2014 and December 2016, respectively. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2017, the Court granted a Joint Motion of the parties, vacated the December 2016 Board decision, and remanded the case to the Board for action consistent with the Joint Motion. In June 2018 and June 2020, respectively, this case was again remanded and denied by the Board. The Veteran appealed to the Court. In February 2022, the Court granted a Joint Motion of the parties, vacated the June 2020 Board decision, and remanded the case to the Board for action consistent with the Joint Motion. In September 2022, the Board remanded the case for additional development. It has since been returned to the Board for further appellate action. The Veteran was last afforded a VA examination in December 2022 and addendum VA medical opinions were obtained in January and February 2023. The examiner opined, in part, that the Veteran's left hip disability was less likely than not incurred in or caused by his active service. In support of this opinion, the examiner acknowledged that acute musculoskeletal lower extremity pain/injury could occur due to parachutist duties or the Veteran's combat service. However, the examiner stated, in part, that the Veteran's left hip disability was medically unrelated to and an entirely separate entity from his pes planus/foot disability during service. The examiner found no evidence that the Veteran's pes planus was aggravated during his service. The examiner noted that the Veteran's first complaint of foot pain in 2004 was linked to the physicality of his post-service railroad duties. The examiner commented, in part, that the Veteran had already spent 25 plus years in a physically demanding role at the railroad. The examiner pointed out that the Veteran's subsequent complaint of foot pain in 2010/2011 was linked to plantar fasciitis (a completely separate medical condition). The examiner found no records to corroborate the Veteran's statements that his pre-service pes planus was aggravated or would cause an issue with his hip/gait. The examiner stated that there were no signs of symptomatic pes planus which would need to be present to cause a gait abnormality or currently present left hip disability. The examiner noted that the Veteran had very clearly stated at past and current examinations that his pain began later in life. The examiner determined that the Veteran's reported in-service foot pain was implausible as there would have been objective service treatment record evidence of symptomatic pes planus. The examiner remarked that the Veteran was now saying remotely that he had physical ailments which would contradict his own assessment of "excellent" health during service. The examiner concluded that the Veteran's left hip disability was most likely due to the physicality of his post-service railroad work and in combination with his age, which is supported by research on the etiology of osteoarthritis. The examiner stated that it would be unlikely that the two-years of service-related physical demands would factor more heavily than 25 plus years of a physically demanding job in the development of osteoarthritis. However, the examiner noted that unlike a 2015 X-ray, X-ray findings in 2021 were unremarkable for left hip arthritis. The examiner added that the Veteran's own account did not endorse a connection to his pes planus or service at the examination. The examiner stated that the Veteran, who was credible and able to speak on the rigors of service, did not correlate, let alone mention, any service connection to his left hip condition at the examination. However, the Board finds that the development conducted does not adequately comply with the September 2022 Board remand. In this regard, the examiner did not specifically address the Veteran's report that he sustained hip and/or foot problems after participating in long marches over uneven terrain while carrying heavy supplies. The examiner failed to explain how the Veteran's pes planus could potentially cause hip problems later in life. The examiner did not discuss the connection, or lack thereof, between a person's gait and the impact it has on one's hips. Furthermore, the examiner did not consider the Veteran's new theory of entitlement to service connection as secondary to service-connected posttraumatic stress disorder (PTSD), to include an intermediate step of weight gain. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an addendum VA medical opinion is warranted. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, return the claims file for an addendum opinion by a VA examiner with sufficient expertise to determine the nature and etiology of the Veteran's left hip disability. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on a review of the record, the examiner should provide an opinion as to 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 had its onset during his active service or is otherwise etiologically related to such service, including his pre-existing pes planus. In support of this opinion, the examiner must discuss the Veteran's reported combat-related duties, to specifically include jumping out of helicopters and marching long distances over uneven terrain while carrying heavy gear; any service or post-service evidence of alteration in gait; how the Veteran's pre-existing pes planus could potentially cause hip problems later in life; and the connection (or lack thereof) between a person's gait and the impact it has on one's hips. Then, the examiner should determine 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 was caused by, aggravated by, or would not have occurred but for service-connected posttraumatic stress disorder, to include any weight gain determined to be the result of his PTSD and/or treatment for such. In support of this opinion, the examiner must discuss the Veteran's article submissions. A rationale for all opinions expressed must be provided. 3. Confirm that the VA medical opinions provided comport with this remand and undertake any other development determined to be warranted. (Continued on the next page) ? 4. Then, readjudicate the appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.