Citation Nr: 1019783 Decision Date: 05/27/10 Archive Date: 06/09/10 DOCKET NO. 07-05 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a left hip disability, to include as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to December 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a left hip disability (claimed as secondary to a service-connected low back disability). During the course of the appeal, the case was remanded in August 2009 for additional evidentiary development, including scheduling the Veteran for a medical examination to obtain a nexus opinion addressing the claim at issue. The medical examination ordered on remand was conducted in December 2009. Following this development, the claim was readjudicated and denied in a March 2010 rating decision/supplemental statement of the case. The appeal was returned and certified to the Board in April 2010 and the Veteran now continues his appeal. For the reasons that will be discussed below, the appeal is REMANDED again to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if further action is required on their part. REMAND The Board has reviewed the report of the December 2009 VA medical examination that was conducted pursuant to the August 2009 Board remand. The Board is cognizant that once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). A medical opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The December 2009 VA examination report contains an X-ray report of the Veteran's left hip. According to the examiner's opinion, the radiographic film shows what he characterized as an "(i)ntrinsically normal hip." Although the examiner made a notation that he had reviewed the Veteran's claims file for this examination, the Veteran has submitted a relevant piece of evidence - an October 2007 VA X-ray report showing joint space narrowing of his left hip that was detected during treatment for complaints of left hip pain - that was not associated with his claims file until April 2010. A review of the evidence included in the file at the time of the December 2009 VA examination does not indicate that the October 2007 VA X-ray study of the Veteran's left hip was part of the record at the time. The December 2009 examiner's opinion also does not address the conflicting findings of the October 2007 radiographic study, or otherwise reconcile it with the diagnosis of an "(i)ntrinsically normal hip." Therefore, as the adequacy of the December 2009 opinion is called into question by this deficit, the case should be remanded so that an addendum to the December 2009 VA examination report may be obtained, in which the examining physician provides an opinion as to the Veteran's current clinical diagnosis regarding his left hip in the context of the October 2007 X-ray study, reconciling any conflicting objective findings. Additionally, in a May 2010 brief, the Veteran's representative requested that the Veteran be re-examined as the representative was unable to determine the clinical significance of the December 2009 examiner's use of the word "intrinsically" in characterizing the Veteran's "normal" left hip. The Board is unable to make this determination as it may only consider independent medical evidence to support findings rather than provide its own medical judgment or opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, on remand for an addendum opinion, the VA examiner should also provide commentary to clarify what he intended to mean when he characterized the Veteran's left hip as being normal in an "intrinsic" sense. Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO via the AMC for the following action: 1. Copies of updated treatment records, VA and non-VA, should be obtained and associated with the claims folder. 2. Following completion of the above, the Veteran's claims folder should be provided to the VA physician who conducted the December 2009 orthopedic examination. The examiner should be asked to review the claims file once again, with attention directed to the findings of an October 2007 VA X-ray study showing joint space narrowing of the Veteran's left hip. Thereafter, the examiner should be asked to provide an addendum to his December 2009 report, clarifying the Veteran's current orthopedic diagnosis regarding his left hip and reconciling any conflicting clinical findings. The examiner should also be asked to provide clarification as to his use of the word "intrinsically" in the context of characterizing the Veteran's "normal" left hip. If an orthopedic diagnosis of a chronic left hip disability that is separate and distinct from the left radiculopathy associated with his service-connected low back disability is, in fact, demonstrated, the examiner should provide an opinion as to whether it is at least as likely as not that it was incurred in active service or caused by or aggravated by the service- connected low back disorder. By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression. If the examiner determines that a left hip disorder was aggravated by the service- connected low back disorder, the examiner should express the level of disability caused by the low back disorder to the extent possible. A complete rationale for any opinion expressed should be provided. If the examiner is unable to provide any of the requested opinion(s) without resorting to speculation, it should be so stated. The examiner should use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for a chronic left hip disability, to include as secondary to a service-connected low back disability, should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the appellant has had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).