Citation Nr: 1032599 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 00-11 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a hip disability, including as secondary to the Veteran's service-connected knee disabilities. (The issues of entitlement to service connection for dysthymic disorder and entitlement to service connection for migraine headaches, as well as the issues of entitlement to a rating in excess of 10 percent for a left knee disorder and entitlement to a rating in excess of 10 percent for a right knee disorder, are addressed in a separate decision.) REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD Benjamin M. Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from June 1976 to January 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the benefit sought on appeal. The Veteran appealed that decision, and the case was referred to the Board for appellate review. The Veteran and his sister testified in support of the Veteran's appeal at a videoconference hearing before a Veterans Law Judge in April 2002. A transcript of that proceeding is of record and has been associated with the claims file. In a March 2008 decision, the Board, inter alia, denied entitlement to service connection for a hip disability, including as secondary to the Veteran's service-connected knee disabilities. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2010 Order, the Court vacated the Board's decision on that issue remanded the claim of entitlement to service connection for a hip disorder to the Board. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran first claimed entitlement to service connection for a hip disorder in December 1998. A December 2005 rating decision denied entitlement to service connection for that condition. The Veteran submitted a Notice of Disagreement (NOD) with that decision in January 2006. The RO issued a Statement of the Case (SOC) in April 2006 and in May 2006 the Veteran filed a Substantive Appeal (VA Form 9). In a March 2008 decision, the Board, inter alia, denied entitlement to service connection for a hip disability, including as secondary to the Veteran's service-connected knee disabilities. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2010 Order, the Court vacated the Board's decision on that issue remanded the claim of entitlement to service connection for a hip disorder to the Board. In so remanding that issue, the Court noted that while the Board did obtain VA medical examinations, those examinations failed to adequately address the etiology of the Veteran's hip disability. The Veteran was first afforded a VA examination for his claimed hip disorder in March 2006. The examiner indicated that the claims file was not available for review. He opined that the Veteran's right hip avascular necrosis was less likely as not caused by or the result of his service-connected bilateral knee condition. His rationale was that the Veteran had a mild bilateral knee condition and that avascular necrosis is not caused as a result of a chronic condition of the joint below the hip, but that it was more likely due to the Veteran's motor vehicle accident or some other known system cause of avascular necrosis. In a letter submitted by the Veteran in March 2006, the Veteran's VA primary care physician stated that after reviewing the Veteran's service medical records he felt that the Veteran's right hip condition was at least as likely as not related to the altered gait and compensating for his service-connected left and right knees. The physician's rationale was the long-standing leg and ankle problems documented in the Veteran's service treatment records. The Veteran was afforded an additional VA examination in May 2007. In his report the examiner stated that the Veteran's right hip condition was avascular necrosis and that it was not secondary to his bilateral knee condition. Pursuant to the VCAA, the duty to assist includes obtaining medical records and an adequate examination where indicated by the facts and circumstances of an individual case. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Furthermore, once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The Board finds that the VA examinations provided thus far have not been sufficient for evaluation purposes and the extent to which the Veteran's hip disorder may be etiologically related to service or to the Veteran's service-connected disabilities is still unclear. As such, an additional VA examination must be scheduled to determine whether the Veteran's hip condition may be due to service or secondary to his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and inquire whether he has undergone any treatment for his hip disorder since June 2007. If the Veteran indicates that he has received any treatment or evaluations, the RO/AMC should obtain and associated those records with the claims file. 2. The Veteran should be afforded an appropriate VA examination to determine the nature, extent and etiological origin of his claimed hip disorder. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The claims file must be made available to and be reviewed by the examiner prior to the examination. Based on a review of the claims file and the results of the Veteran's examination, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hip disorder is related to active service or was caused or aggravated (permanently worsened) by his service-connected disability or disabilities, including his knee disabilities. A complete rationale for any opinion expressed must be included in the report provided and an explanation of the principles involved would be of considerable assistance the Board. 3. Review the VA examination report after completion to ensure that all questions asked of the examiner were answered to the extent possible. If they were not, return the claims folder to the examiner and request that the questions be answered so that the report is adequate for rating purposes. 4. When the requested development has been completed the case should again be reviewed by the RO, to include consideration of any additional evidence submitted. If the benefit sought is not granted the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until she is notified by the RO. 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). _________________________________________________ V. L. JORDAN 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).