Citation Nr: 1118052 Decision Date: 05/11/11 Archive Date: 05/17/11 DOCKET NO. 09-23 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected left knee or lumbar spine disability. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from May 1986 to May 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to increased evaluations for a left knee disability, a left hip disability, a lumbar spine disability, and a right knee disability, have been raised by the record, to include the Veteran's February 2010 claim. Additionally, in an October 2010 submission, the Veteran raised the issues of entitlement to service connection for a thoracic spine disorder, to include as secondary to his service-connected orthopedic disabilities, and a stomach disorder, to include as secondary to medication taken for his service-connected disabilities. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Remand is required to obtain a VA medical examination. In this appeal, the Veteran alleges that a right hip disorder has been caused by his service-connected left knee disability, to include as a result of an altered gait. Service connection has been granted for a left hip disability, a right knee disability, and a lumbar spine disability, all as secondary to the left knee disability. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). VA's duty to assist includes providing a medical examination when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus, including equivocal or non-specific medical evidence or credible lay evidence). The RO did not provide the Veteran with an examination because it found there was no currently diagnosed right hip disability. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-62 (Fed. Cir. 2001) (holding that a symptom, such as pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). But in an August 2010 VA medical record submitted by the Veteran after the case was certified and sent to the Board, a diagnosis of bilateral hip strain was provided. Additionally, October and November 2009 private medical records provided diagnoses of right hip chondromalacia and possible underlying osteoarthritis; although the records noted that a recent magnetic resonance imaging (MRI) examination was negative. Thus, there is evidence of a right hip disability. Additionally, the Veteran has reported right hip pain since approximately 2007. In a February 2007 VA medical record and a September 2007 VA joints examination, an antalgic gait due to left knee disability was noted. A September 2007 VA spine and joints examination found that the low back sprain, right knee sprain, and left hip sprain were due to the service-connected left knee disability, noting that the exact etiology of recurrent sprains was unknown. In an April 2010 VA medical record, it was noted that there was low back, hip, and knee pain. The examiner stated that the history of thoracic cord compression and knee surgery was the likely explanation for the symptoms. The Board finds that this evidence indicates that a right hip disorder may be associated with the service-connected left knee disability. Accordingly, remand for a VA examination is required. Additionally, in a December 2010 argument on appeal, the Veteran's attorney asserted that the right hip disorder was also secondary to the service-connected lumbar spine disorder. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (noting that, generally, a medical opinion should address the appropriate theories of entitlement). Accordingly, the examination should also address this theory of entitlement. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records that are not already associated with the claims file. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the named records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that are unobtainable; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. 3. After any records are obtained and associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the right hip disorder. The claims folder, including a copy of this remand, must be made available to the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. The examiner must provide an opinion, in light of the examination findings and the service and post-service medical evidence of record, whether the Veteran's right hip disorder was caused or aggravated by 1) active military service, 2) the service-connected left knee disability, to include as due to an altered gait, or 3) the service-connected lumbar spine disability, to include as due to an altered gait. The examiner must address the relevant medical records, to include those records noting an altered gait, the 2009 private records diagnosing right chondromalacia and possible underlying osteoarthritis, the August 2010 VA record diagnosing right hip strain, the April 2010 VA record noting that a history of cord compression and knee surgery was the likely explanation for the hip pain, and the May 2008 negative MRI report. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. 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 must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. 2010). _________________________________________________ K. J. ALIBRANDO 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) (2010).