Citation Nr: A25106930 Decision Date: 12/11/25 Archive Date: 12/11/25 DOCKET NO. 241212-497675 DATE: December 11, 2025 REMANDED Entitlement to service connection for a right hip disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1998 to December 1998, and from October 2000 to July 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the December 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for a right hip disorder is remanded. The Veteran underwent a VA examination in November 2023 where the examiner confirmed a diagnosis of right hip degenerative arthritis and leg length discrepancy, and provided a negative nexus opinion. They noted reports of medical examination and history during service which repeatedly indicated that the lower extremities were normal, with the exception of a May 2007 report of medical assessment which noted "right hip previous injury - (chronic pain)." The examiner stressed that a corresponding report of medical examination found that the hip had full range of motion, and that the Veteran had a football injury as a teenager. They cited to January 2009 VA treatment records where the Veteran reported injuring his right leg in high school. The examiner referenced medical literature which found that leg length discrepancies can cause degenerative changes. They concluded that without chronicity during service, a post or pre-service event was a more likely etiology. In March 2024, the AOJ asked the examiner to provide clarification on the teenage injury. The examiner provided an addendum opinion which consisted of a duplicate of their November 2023 opinion. The Veteran requested a Higher-Level Review, and the AOJ identified a duty to assist error, and ordered a new nexus opinion. In October 2024, a VA examiner indicated that there were no complaints of or treatment for a right hip disorder during service, or in the years following separation. They indicated that the leg length discrepancy was likely congenital and unrelated to service, and was successfully treated with a shoe lift. The examiner found that the hip pain was most consistent with stress related strain injuries, and the congenital short leg syndrome, which are not associated with age-related degenerative arthritis. The examiner also found that the claimed condition of right hip degenerative arthritis, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated by service. They reiterated that there were no complaints of or treatment for the condition during service, or for a substantial period of time after separation. The Board finds that the November 2023 examiner erred in failing to address the proper standard for pre-existing conditions. A Veteran generally is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). This presumption of soundness can be overcome with clear and unmistakable evidence both that a disability preexisted service and was not aggravated by service. Id. To determine that a preexisting condition was aggravated by service, VA must not rest on the notion that the record contains insufficient evidence of aggravation, rather VA must rely on affirmative evidence to prove there was no aggravation. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). While the October 2024 examiner found that it was clear and unmistakable that the condition pre-existed service, and was not aggravated by service, they did so by resting on the notion that the record contained insufficient evidence of aggravation. Id. Additionally, the examiner appears to have conflated the degenerative arthritis with the leg length discrepancy. They also erred in failing to address the Veteran's report of chronic hip pain on May 2007 report of medical history. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Finally, both examiners erred in neglecting to address the Veteran's theories of entitlement. At a February 2010 VA examination, he alleged that he injured his hip after he fell on the flight deck during service. On his October 2023 application, the Veteran asserted that his right hip disorder is related to his military occupational specialty (MOS) of aviation boatswain's mate equipment, and steelworker. He explained that over time the loadbearing work caused his bad right hip. At the November 2023 VA examination, the Veteran reported that the right hip condition was related to when he fell down a mountainside in service in 2001 with a pack full of gear. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, a pre-decisional duty to assist error has been identified, and remand is required. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the right hip disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. (a) First, the examiner must identify all currently diagnosed right hip disorders. If any previously diagnosed disorder, including, but not limited to, right hip degenerative arthritis, and leg length discrepancy, are not found on examination, address the prior diagnoses of record. (b) Second, for each diagnosed disorder, the examiner must provide an opinion regarding whether it is clear and unmistakable (undebatable) that the disorder pre-existed the Veteran's active service. (c) If the answer to (a) is in the positive, provide an opinion regarding whether it is also clear and unmistakable (undebatable) that any current disorder was not aggravated by active service. The examiner is reminded that they may not rest on the notion that the record contains insufficient evidence of aggravation, rather must rely on affirmative evidence to prove there was no aggravation. (d) If the examiner finds that the disorder did NOT clearly and unmistakably preexist service, or was clearly and unmistakably NOT aggravated by service, the examiner must provide an opinion regarding whether the likelihood is at least approximately balanced or nearly equal, if not higher, that the disorder had onset in, or is otherwise related to, active service. (e) The examiner should consider the following: 1) the May 2007 report of medical history where the Veteran reported chronic pain from a previous right hip injury as a teenager; 2) the February 2010 VA examination where the Veteran reported that he injured his right hip after falling on the flight deck during service, and denied any childhood hip pain; 3) the October 2023 application for service connection on which the Veteran asserted that his right hip condition was related to his MOS; 4) the November 2023 VA examination where he reported that the condition was related to a fall down a mountainside; and 5) the October 2024 addendum medical opinion. Thomas L. English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rogos, J. 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.