Citation Nr: 1220486 Decision Date: 06/12/12 Archive Date: 06/22/12 DOCKET NO. 10-00 351A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a left hip disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran was notified of the denial and of his appellate rights in a letter from the RO dated the following day. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that this appeal must be remanded for further development. The Veteran seeks service connection for arthritis of his left hip, which he contends was incurred during his military service. In this regard, service connection generally requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The record demonstrates that the Veteran is currently diagnosed with osteoarthritis of his left hip. See the VA X-ray report dated in May 2007. As to an in-service disease or injury, the Veteran contends that he injured his left hip during basic training. See the Veteran's notice of disagreement (NOD) dated August 2009. To this end, the Veteran's service treatment records (STRs) demonstrate that he injured his right hip in August 1965, only two months into his military service. In addition to multiple notations pertaining to his right hip and right inguinal area, STRs also note pain and tenderness in the groin as well as "high medial thigh pain." These nonspecific notations do not identify whether they are referring to the left or right groin and/or thigh. Despite this ambiguity in the STRs (as to whether the Veteran was treated for right, or left, hip problems during his active duty), he has contended that he injured his left hip during his military service and that he has experienced left hip pain since then. Significantly, he is competent to report events that have happened to him and symptoms such as pain and tenderness in his left hip that he experiences. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398,403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). 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. With regards to the Veteran's claim of service connection, the Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is 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 that 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. The threshold for finding a link between current disability and service sufficient to warrant obtaining a VA examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. In this regard, the Board notes that a veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, supra. As the discussion herein of the pertinent facts of this appeal illustrate, the Veteran has competently reported having injured his left hip in active duty (although STRs do not specifically reflect left hip treatment) and having experienced left hip pain since then. Thus, given the standard of the regulation, an examination is necessary to obtain a medical nexus opinion as to the issue on appeal. See 38 C.F.R. § 3.159(c)(4) (2011) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Moreover, review of the record (including the Veteran's physical VA claims file as well as his Virtual VA file) reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of any left hip treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received at the VA Medical Center (VAMC) in Cleveland since April 2009. All such available documents should be associated with the claims file. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any left hip disability that he may have. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be annotated in the evaluation report. All pertinent testing deemed necessary should be accomplished, and the results of any such studies should be included in the examination report. The examiner should obtain a detailed history of the Veteran's symptoms as observed by him since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any left hip disability (to include arthritis) had its clinical onset in service or is otherwise related to active duty. In answering this question, the examiner should address the Veteran's competent reports of having injured his left hip in service and of having experienced left hip pain since then. Complete rationale should be given for all opinions and conclusions expressed. The examiner should set forth the specific medical reasons for accepting or rejecting the Veteran's statements of continuity of symptoms since military service. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. [The AOJ should ensure that any additional evidentiary development suggested by an examiner be undertaken so that a definite opinion can be obtained.] 3. Thereafter, readjudicate the issue of entitlement to service connection for a left hip disability. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2011). He has the right to submit additional evidence and argument on the matter that 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ THERESA M. CATINO 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. 38 C.F.R. § 20.1100(b) (2011).