Citation Nr: 1301037 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-03 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left hip disorder, to include as secondary to a low back disorder. REPRESENTATION Appellant represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The appellant served in the Army National Guard and had active duty for training from February 2007 to June 2007. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In November 2010, the Board remanded the appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. As will be discussed below, the Board must remand the issues again because the claims file does not reflect substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Board is bound to ensure compliance with remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of the record shows that some of the prior directives from the November 2010 remand were not completed. In the November 2010 remand, the Board directed the RO to arrange for the appellant to undergo a VA examination to determine the nature and etiology of any low back and left hip disorders that may be present. While the appellant was afforded a VA spine and joints examination in December 2010, and the examiner provided opinions with respect to the appellant's claimed low back and left hip disorders, she did not provide the specific opinions requested in the remand directives. Specifically, the examiner was requested to opine as to whether the appellant has a current diagnosis of sacroiliitis, and if so, she was asked to "provide an explanation as to whether sacroiliitis is a disorder that affects the hips, the back, or both." In her December 2010 opinion, the examiner diagnosed the appellant with bilateral sacroiliitis with tenderness over the left sacroiliac joint; however, she did not provide an explanation as to whether sacroiliitis is a disorder that affects the hips, the back, or both. Moreover, she did not opine as to whether the sacroiliitis was related to the Veteran's military service. The Board also requested that the examiner discuss whether the appellant's back disorder may have been the source of her left hip pain in service and whether she may have misdiagnosed in service. However, the examiner also did not address those questions. Moreover, the Board requested that the examiner "discuss medically known or theoretical causes of the appellant's current back and hip disorders and describe how such disorders generally present or develop in most cases, in determining the likelihood that current disorders are related to her military service as opposed to some other cause." Although the examiner did diagnose the appellant with sacroiliitis and a back disorder, no such discussion was provided regarding those disorders. Therefore, in an effort to comply with the prior remand, the Board finds that a VA medical opinion is necessary for the purpose of determining the nature and etiology of the appellant's claimed low back and left hip disorders. Lastly, it appears that there may be additional medical records that are pertinent to the claims. During the December 2010 VA examination, the appellant identified that she has recently been treated by a private family medical physician at the Morningside Clinic in Sioux-Land Family Health Care, a private rheumatologist through CNOS at Dakota Dunes, South Dakota, and a private chiropractic physician at Tri-State Chiropractic at South Sioux City, South Dakota. Records from these treatment providers have not been obtained and associated with the claims file. During the December 2010 VA examination, the appellant also indicated that she would be willing to submit written reports for a recent x-ray study conducted by a private chiropractic clinic. While the actual x-ray images have been associated with the claims file, the written reports have not been included with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should ascertain if the appellant received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include, but not limited to, any VA treatment records not associated with the record and private treatment records from the appellant's private family medical physician, private rheumatologist, and private chiropractic physician, that were identified in the December 2010 VA examination report. The RO/AMC must provide the appellant with authorization forms for the release of any identified outstanding private treatment records. The RO/AMC must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. Specifically, when requesting records from the private chiropractic physician, the RO/AMC must request the written reports associated with an October 2010 x-ray study of the appellant's lumbar and thoracic spine. If VA is unsuccessful in obtaining any medical records identified by the appellant, it must inform her and provide her an opportunity to submit copies of the outstanding medical records. 2. After obtaining any additional records identified by the appellant, the claims file and a copy of this remand should be returned to the December 2010 VA examiner for a medical opinion to determine the nature and etiology of any low back and left hip disorders that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the appellant's service treatment records, post-service medical records, and statements. If an additional examination is deemed necessary to provide the requested opinion, such an examination should be scheduled. (An examination may be necessary if there are additional treatment records obtained that document new or different diagnoses of a back and/or left hip disorder.) It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner is requested to review the claims file and her December 2010 opinion and to provide an explanation as to whether sacroiliitis is a disorder that affects the appellant's hip, the back, or both. The examiner should also discuss whether it is at least as likely as not that the sacroiliitis or a back disorder was the source of or related to the appellant's left hip pain in service and whether she may have been misdiagnosed in service. The examiner is also requested to provide an opinion as to whether it is at least as likely as not that the sacroiliitis and any current back disorder is causally or etiologically related to the appellant's military service, including her symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) In rendering these opinions, the examiner should discuss medically known or theoretical causes of the appellant's current low back and left hip disorders and describe how such disorders generally present or develop in most cases, in determining the likelihood that current disorders are related to her military service as opposed to some other cause. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO/AMC should review the examination report to ensure that it is in complete compliance with this remand. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 4. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the appellant and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2012). _________________________________________________ JESSICA J. WILLS 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).