Citation Nr: 1031256 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 05-36 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a hip disorder. 2. Entitlement to service connection for an acquired psychiatric disorder (other than posttraumatic stress disorder), to include anxiety/depression. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which deferred the issues of entitlement to service connection for a cervical spine condition and a bilateral shoulder condition; confirmed and continued a denial of service connection for residuals of a low back injury; and denied service connection for degenerative changes of the lumbar spine, a foot condition, anxiety/depression, a leg condition, and a hip condition. In September 2004, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in November 2005. In a March 2008 decision, the Board reopened and remanded the Veteran's claim of entitlement to service connection for residuals of a low back injury; remanded his claims of entitlement to service connection for degenerative changes of the lumbar spine, a cervical spine disorder, and a bilateral shoulder disorder; and denied service connection for a foot disorder, anxiety/depression, a leg disorder, a hip disorder, and posttraumatic stress disorder (PTSD). The Veteran appealed the Board's denials of service connection for a hip disorder and anxiety/depression to the United States Court of Appeals for Veterans Claims (Court). He did not appeal the denials of service connection for a foot disorder, a leg disorder, or PTSD. In March 2010, the Court issued an order granting a March 2010 joint motion to remand (JMR) the appeal to the Board. The appeal was returned to the Board for action consistent with the March 2010 JMR and Court order. In February 2010, the Veteran filed a claim of entitlement to service connection for tinnitus. This issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the St. Louis RO. VA will notify the Veteran if further action on his part is required. REMAND After a review of the claims file, the Board finds that this claim must be remanded for further development consistent with the March 2010 JMR and Court Order. The Veteran alleges that he has a current hip disability that is the result of his military service. His service treatment records are negative for complaints of a specific hip injury. However, a July 1972 report of medical history upon entrance to service indicates that he was involved in a motor vehicle accident at age 12 with injuries including a hip injury. Additionally, an April 1973 service treatment record reflects complaints of pain in the right groin and inside thigh following a fight. Although the latter treatment record does not address the hip specifically, the Board finds it sufficiently related to the hip to warrant a medical opinion. Further, the notation regarding a pre-service hip injury raises the issue of entitlement to service connection based on aggravation of a pre- existing condition. With regard to a current disability, the Board notes that a November 1996 VA treatment record includes a diagnosis of general osteoarthrosis - right hip. Other treatment records indicate that the Veteran's hip symptomatology is related to his low back disability. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. As noted above, the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is: (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In light of the evidence showing in-service notations relating to injuries possibly affecting the hip and a pre-service hip injury and post-service medical evidence of a hip disability, as well as the Veteran's report that his current hip symptoms are related to his active duty service, the Board finds that an examination and medical nexus opinion are necessary in order to properly resolve the claim of entitlement to service connection for a hip disorder. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); see also McLendon, supra. Thus, in compliance with the March 2010 JMR and Court Order, the Veteran must be afforded a VA examination and nexus opinion. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to service connection for a hip disorder must be remanded for a VA examination and nexus opinion. Additionally, the Veteran's psychiatric treatment records indicate that his current psychiatric disorder, to include anxiety and depression, is related to his low back disability. As noted above, the issues of entitlement to service connection for a residuals of a low back injury and degenerative changes of the lumbar spine have been remanded to the AOJ for further development. As a grant of service connection for a low back disability could impact the Veteran's claim for service connection for an acquired psychiatric disability, to include anxiety and depression, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, the RO must further develop and readjudicate the Veteran's claims of entitlement to service connection for residuals of a low back injury and degenerative changes of the lumbar spine, and then readjudicate the Veteran's claim for service connection for an acquired psychiatric disability, to include anxiety and depression. As this case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records prepared since February 2006. 2. Complete the remand development directives ordered in the Board's March 2008 decision, including scheduling an examination for the Veteran's low back disability claims. 3. After completion of the March 2008 remand directives, schedule the Veteran for a VA examination to determine the nature and etiology of his hip disorder. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination, including the above-referenced service treatment records. This must be noted in the examination report. The examiner must state whether the Veteran has a current hip disorder and, if so, whether it is at least as likely as not that such a disability was caused or aggravated (permanently increased in severity beyond the natural progression of the disorder) by a disease or injury in service or by any other service-connected disability. It would be helpful if the examiner would 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. The examiner should provide a complete rationale for any opinion provided. 4. After completing the above actions and any other notification or development deemed necessary (to include a VA mental disorders examination and nexus opinion), the Veteran's claim of entitlement to service connection for low back disability should be readjudicated, followed by readjudication of his claim for service connection for a hip disorder. Thereafter, his claim of entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include anxiety and depression, should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2009). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & 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 is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2009).