Citation Nr: 1300221 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 08-12 437 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from August 18, 1972 to October 2, 1972, with additional Reserve service including a period of active duty for training from October 21, 1977 to November 15, 1977. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the RO. The Board remanded the case to the RO in May 2011 for further development of the record. The Board notes that the Veteran was previously represented by Vietnam Veterans of America. In September 2012, he granted a power-of-attorney in favor of Disabled American Veterans (DAV). DAV has submitted written argument on his behalf. The Board recognizes the change in representation. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Unfortunately the Board finds that further development is warranted, even though such will, regrettably, further delay an appellate decision on the issues on appeal. Initially, the Board notes that the Veteran reports that he is in receipt of Social Security benefits. The records pertaining to the award of such benefits by the Social Security Administration (SSA) have not been associated with the record certified for appellate review. Such records may be of significant probative value in determining whether service connection for the disabilities at issue may be granted. As the Court held in Lind v. Principi, 3 Vet. App. 493, 494 (1992), that the duty to assist requires the VA to attempt to obtain records from other Federal agencies, including the SSA, when the VA has notice of the existence of such records. Thus, the RO must request complete copies of the SSA records utilized in awarding the Veteran disability benefits. In January 1970, prior to his entrance into service, the Veteran sustained injury to his hip in a sledding accident. The diagnoses were those of slipped capital femoral epiphyses, bilateral and intertrochanteric fracture of the right hip. The Veteran underwent surgical intervention and had a Smith-Petersen nail and plate and two Moore pins inserted in his right hip and Moore pins inserted in his left hip. His August 1972 entrance examination documented the preexisting bilateral hip disorder; however, the Veteran was found qualified for enlistment. A September 1972 Medical Board Proceedings record reflected that the Veteran was initially found medially fit for duty. The Medical Board documented the Veteran's complaint of pain in both hips. The examiner documented the history and noted that the Veteran complained that he experienced pain on doing strenuous physical activity. An examination revealed that the Veteran had tenderness over both hips. He demonstrated limited abduction on the right and limited internal rotation of the hips bilaterally. The X-ray results showed findings of coxa plana with osteophyte formation, femoral heads. The diagnosis was that of coxa plana secondary to bilateral hip fracture dislocation. The Medical Board concluded that the Veteran was unfit for induction and should be separated from the service. The separation examination confirmed the findings of the Medical Board. In the September 1977 Report of Medical History associated with his enlistment examination for the Rhode Island Army National Guard, the Veteran reported he was in good health; there was no indication of a history of broken bones. The examiner noted bilateral hip surgery (7 years ago) and reported there was no sequelae as the Veteran had full activity, presently. The corresponding September 1977 enlistment examination reflects that the Veteran had full range of motion of both hips; he was declared healthy and found qualified for enlistment. An October 1977 Medical Board Proceedings record reflected that the Veteran was initially found medially fit for duty. The Medical Board documents the Veteran's complaint of pain in both hips. The examiner documented the history of the disorder and noted that the Veteran complained that he had been unable to do any physical activity because of his bilateral hip pain. An examination revealed that the Veteran had longitudinal surgical scars, bilaterally. There was pain with motion in the hips; he had about 80 percent full range of motion. The X-ray studies showed shortening and widening of both femoral necks and deformity at the base of the femoral heads bilaterally. The diagnosis was that of internal derangements of both hips secondary to old injury in 1970. The Medical Board concluded that the Veteran was unfit for enlistment and should be separated from the service. In the November 1977 Report of Medical History associated with his separation examination, the Veteran reported that his hips were stopping him from doing his best. He indicated that he had a history of broken bones. The corresponding separation examination confirmed the findings of the Medical Board and the Veteran was found not qualified for enlistment. Subsequent to service, the Veteran asserts that his preexisting bilateral hip disorder was aggravated during his brief periods of service. Pursuant to the May 2011 Board remand, the Veteran underwent VA examination in June 2011. On examination the physician diagnosed severe limitation of the right hip motion and limitation of the motion of the left hip. The physician stated that it was clear from a review of the claims file and the history involved that, on two different occasions, the Veteran was accepted into the military with what was considered an ability to perform his duties. Each time, after a brief period of time, he was discharged for a complete flare-up and irritation of both hips. The examiner concluded that it was clear from the record, that the preexisting hip disability was at least as likely as not irritated by both periods of service. The examiner summarized that the Veteran's preexisting hip problem was irritated during service, demanding his discharge on a medical basis. Service connection is warranted for disability due to disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303. A preexisting disorder is considered aggravated when there is a demonstration of an increase in disability during service, not due to the natural progress of the disease. Thus, the relevant question, that has not been answered is whether there was any increase in severity of the preexisting bilateral hip disorder during service that was not due to the natural progress of the disorder, i.e., was the "irritation" of the bilateral hip disorder during the Veteran's brief periods of service normal course or did it represent a worsening of the bilateral hip disorder beyond the normal progression of the disorder? Thus, the Board finds that another VA examination is necessary to obtain an opinion to clarify the etiology of the claimed bilateral hip disorder. The Veteran also asserts that he sustained a back injury during his brief periods of service. Service treatment records contain no indication of, treatment for or diagnosis of a back disorder. Subsequent to service, an October 1991 X-ray report showed findings of minimal degenerative change in the lumbar spine. The September 2006 private treatment records documented complaints of chronic low back pain, muscular in etiology. An October 2006 private treatment record reflected that the symptoms of the low back pain had improved somewhat. Pursuant to the May 2011 Board remand, the Veteran underwent VA examination in June 2011. On examination, the diagnosis was that of degenerative joint disease of the lower back. The physician opined that the current back disability was at least as likely as not due to period of service in the military. In a subsequent June 2011 VA examination report, the nurse practitioner opined that the current back disability was less likely than not (less than 50 percent probability) incurred in or caused by service injury, event or illness. The nurse practitioner explained that there was no evidence in the Veteran's service treatment records to establish an injury occurred or that the Veteran sought treatment for his back during service. The nurse practitioner concluded that it was less likely than not that the Veteran's back disability was related to service. Given this conflicting evidence, the Board finds that a more contemporaneous VA examination is necessary to determine the likely etiology of the claimed back disorder. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take all indicated action in order to obtain copies of all records referable to the Veteran's SSA disability benefits application (including any SSA determination on his claim for benefits and all medical records underlying such determination). All records received by the RO must be added to the claims file. If the search for such records is unsuccessful, documentation to that effect must be added to the claims file. 2. The Veteran should be afforded a VA examination by the appropriate examiner to determine the nature and likely etiology of the claimed bilateral hip disorder. His claims folder must be made available for the examiner's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the examination report. All indicated tests and studies are to be performed. After reviewing the entire record and examining the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the pre-existing bilateral hip disability was aggravated (i.e., worsened beyond its natural progression) by the Veteran's brief periods of service. If so, the examiner should attempt to objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 3. The Veteran should also be afforded a VA spine examination to determine the nature and likely etiology of the claimed back disorder. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. Based on a review of the claims file and the clinical findings of the examination, the physician should opine as to whether it is at least as likely as not that any current back had its onset during service or is otherwise etiologically related to an injury or other incident of his brief periods of service. The physician should address and include specific discussion of the conflicting medical evidence of record, namely the conflicting June 2011 VA examinations. A complete rationale must be given for all opinions and conclusions expressed in a typewritten report. 4. The Veteran must be given adequate notice of the date and place of the requested examinations. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 5. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2011). _________________________________________________ STEPHEN L. WILKINS 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).