Citation Nr: 1237250 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 04-29 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for a back disorder, to include as secondary to a bilateral hip disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Senior Counsel INTRODUCTION The Veteran had active service from July 1975 to November 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board previously remanded the case in September 2007 for specific evidentiary and procedural development. The case was again remanded in March 2009, at which time further efforts were requested with respect to obtaining relevant VA treatment records for the Veteran dating back to 1976, and additional service treatment records from Fort Ord, California, and/or Fort Leonard Wood, Missouri, during the period from July 1975 to November 1976. In May 2012, a hearing was held before the undersigned Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002). The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is once again required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record on which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran currently has bilateral hip disorder variously diagnosed as degenerative joint disease (DJD) (right hip) and avascular necrosis of the left femoral head with degenerative changes (left hip), for which he has undergone hip replacements on the right in May 2004, and on the left, in April 2005. VA treatment records from March 1995 and June 2005 have referred to his hip condition as congenital in nature, the March 1995 record characterizing the bilateral hip DJD as possibly secondary to avascular necrosis or congenital dysplasia, and the June 2005 record simply noting a past medical history that included congenital DJD. The March 1995 VA treatment record also notes that the treatment plan was to be the same regardless of the exact diagnosis, and it is apparent that further efforts to more particularly identify the etiology of the disability were therefore not undertaken. However, given the fact that the Veteran has credibly testified to being informed by a VA physician about a degenerative condition of the hips within several years after service that the physician believed to have likely been present during service, that the Veteran has also credibly testified to in-service incidents involving falls during basic training and pain incurred as a result of lifting boxes while assigned to the mail room, and that there were no post-service injuries to either the back or hip immediately after service, the Board finds that the issue of entitlement to service connection for a bilateral hip disorder should be remanded for an opinion as to whether it is at least as likely as not that any disorder of the hip was incurred in or aggravated by the Veteran's period of active service. In this regard, the Board would like to point out that service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin. In such cases, service connection is warranted if the evidence as a whole establishes that the condition in question was incurred or aggravated during service within the meaning of VA law and regulations. For congenital and developmental defects, if superimposed disease or injury occurs during service, service connection may indeed be warranted for the resultant disability. "Disease" has been broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Dorland's Illustrated Medical Dictionary 385 (26th Ed. 1974). In case law, the word has been variously defined as (for example) a morbid condition of the body or of some organ or part; an illness; a sickness. 12A WORDS AND PHRASES Disease, at 388 et seq. (1954). On the other hand, the term "defects," viewed in the context of 38 C.F.R. § 3.303(c), would be definable as structural or inherent abnormalities or conditions which are more or less stationary in nature. As there is also a current diagnosis of a low back disorder and the Veteran's claim for service connection for a low back disorder includes a claim that such disorder is secondary to his bilateral hip disorder, the Board will defer any decision with respect to this claim pending the completion of the above-requested development. However, the Board will also request that in addition to providing the above-noted opinion, the examiner should further opine as to whether it is at least as likely as not that any current disorder of the low back is related to service or was caused or aggravated by any disorder of the hips. See 38 C.F.R. § 3.310 (2012) and Allen v. Brown, 7 Vet. App. 439 (1995). Prior to the examination, the Veteran should also be provided with further 38 C.F.R. § 3.159(b) notification, utilizing the terminology of VAOPGCPREC 82-90, so that he has the opportunity to supplement the record with additional evidence in support of his claim. Arrangements should also be made to obtain any additional VA treatment records for the Veteran, dated since September 2007. Accordingly, the case is REMANDED for the following actions: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notification letter. In this letter, he should be informed that service connection may be granted for diseases of congenital, developmental, or familial origin and that, in such cases, service connection is warranted if the evidence as a whole establishes that the condition in question was incurred or aggravated during service within the meaning of VA law and regulations. He should also be informed that, for congenital and developmental defects, if superimposed disease or injury occurs during service, service connection may indeed be warranted for the resultant disability. See VAOPGCPREC 82-90. 2. Obtain VA clinical records from the Brooklyn VA Medical Center for the period since September 2007. Any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 3. Schedule the Veteran for an examination with a physician who has experience with genetic diseases. The examiner must review the entire claims file in conjunction with the examination, and particular attention must be given to the records referring to the Veteran's hip disorder as congenital in nature (e.g., the March 1995 VA record characterizing the Veteran's bilateral hip DJD as possibly secondary to avascular necrosis or congenital dysplasia, and the June 2005 VA record noting a past medical history that included congenital DJD). For purposes of this opinion, the examiner is asked to accept that a "disease" is a condition considered capable of improving or deteriorating. On the other hand, a "defect" refers to a condition not considered capable of improving or deteriorating. Based upon the examination, the claims file review, and the lay history reported by the Veteran, the examiner is asked to provide an opinion as to whether a diagnosis of DJD, avascular necrosis, and/or dysplasia is appropriate. For each diagnosis, a statement indicating whether it is considered a disease or defect should be provided. For each diagnosis, the examiner is further requested to offer an opinion whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has such diagnosis is a congenital disease that was incurred or aggravated during service. If the examiner instead finds a diagnosis is a congenital defect, he/she should comment on whether a superimposed disease or injury at least as likely as not occurred during service. Finally, with respect to the Veteran's claim for service connection for a low back disorder, the examiner should state whether it is at least as likely as not that any current low back disorder is related to the Veteran's period of active service and/or was caused or aggravated by any disorder of the hips. All opinions must be supported by a complete rationale in a typewritten report. 4. Thereafter, readjudicated the claims on appeal. If the determination of these claims remains unfavorable, the Veteran and his representative must be furnished with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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. 2011). _________________________________________________ L. HOWELL 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) (2012).