Citation Nr: 1300319 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-48 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for left hip arthritis with arthroplasty. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1956 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has held that lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In this case, the Veteran contends that he developed left hip arthritis due to heavy lifting and having carried 30 caliber machine guns during active service. Service records show the Veteran's military occupational specialty was machine gunner. His January 1958 separation examination revealed a normal clinical evaluation of the lower extremities. In support of his claim the Veteran provided a May 2010 report from P.K.B., M.D., stating that the Veteran's heavy lifting in service could have contributed to his arthritis of the hips. As the Veteran has not been provided a VA compensation examination as to this matter, the Board finds additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have provided any treatment pertinent to his remaining service connection claim. After the Veteran has signed the appropriate releases, sufficiently identified records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified in accordance with the provisions of 38 C.F.R. § 3.159 as to any unsuccessful efforts to obtain evidence and provided an opportunity to obtain and submit those records for VA review. 2. The Veteran should be scheduled for an appropriate VA examination for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has a present left hip disability, including any previous left hip arthritis disability, as a result of active service. Any etiology opinion provided should be reconciled with the service treatment records indicating a normal clinical evaluation of the lower extremities upon separation in January 1958, the Veteran's statements as to his duties in service or any symptoms that have continued since active service, and the May 2010 opinion of Dr. P.K.B. indicating that heavy lifting in service could have contributed to his arthritis of the hips. All indicated examinations, tests, and studies are to be performed. Opinions should be provided based on the results of any examinations or studies, a review of the medical evidence of record, and sound medical principles. A complete rationale for all opinions expressed should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2012). _________________________________________________ Michael J. Skaltsounis Acting 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).