Citation Nr: 1301431 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-21 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hip disability. 2. Entitlement to service connection for a low back disability, to include as manifested by bilateral hip pain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1977, and from September 1977 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). In a September 2011 decision, the Board denied the Veteran's claim for entitlement to service connection for a bilateral hip disorder. Subsequently, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a July 2012 Joint Motion for Remand (JMR), in a July 2012 Order, the Court vacated that part of the Board's September 2011 decision which denied service connection for bilateral hip disability and remanded the claim to the Board for additional consideration. In October 2012, a letter was sent to the Veteran in which he was given 90 days from the date of the letter to submit additional evidence or argument in support of his appeal prior to the Board's readjudication. In October 2012, the Veteran submitted an additional statement, and in November 2012, the Veteran's representative provided an appellate brief presentation. 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 By a July 2012 Order granting a JMR, the Court directed the Board to consider the Veteran's claim for entitlement to service connection for bilateral hip disability as one for entitlement to service connection for a back disability as well. The JMR found that the Board failed to consider all potential claims raised by the medical evidence of record, as required by its decisions in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record) and Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"). The JMR noted that the Veteran underwent a VA examination in April 2008 with regard to his bilateral hip disability, and that the VA examiner found that, although the Veteran described hip pain, he pointed to the lumbosacral area of his back. The VA examiner concluded that there was no medical evidence of a bilateral hip disability on examination, but stated that the majority of the Veteran's reported hip pain emanated from the lumbar region. An x-ray of the lumbosacral spine, provided at that time, revealed mild osteopathic spurring and grade 1 retrolisthesis of L5 on S1. The April 2008 VA examiner did not provide an opinion as to the etiology of the lumbar spine disability. Initially, the Board finds that remand is required in order to avoid prejudice to the Veteran, as the claim for entitlement to service connection for a back disability has not yet been considered by the RO. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993) (when the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). As the RO has not yet adjudicated whether the Veteran's back disability, encompassed within his claim for service connection for a bilateral hip disability, is related to his active duty service, the RO should consider the evidence of record and readjudicate the claim in light of Clemons and Brokowski, in order to avoid prejudice to the Veteran. Id. Additionally, the Veteran should be provided with a new VA examination which addresses the etiology of all of the symptoms related to his reported bilateral hip disability, to include a back disability. In that regard, the Board observes that the Veteran's service treatment records reflect a September 1996 complaint of left hip pain. A May 1997 separation examination notes the Veteran's reports of swollen or painful joints, which he described as pain in the knee and hips after runs or roadmarch, resolving with rest. Although the Veteran was provided with a VA examination in April 2008 with respect to his claimed bilateral hip disorder, the VA examiner did not find evidence of a bilateral hip disability at that time, and concluded that the Veteran's symptoms originated in the lumbar spine. The examiner did not provide an opinion as to whether the Veteran's symptoms found to originate in the lumbar region of the spine and shown on x-ray to be mild osteopathic spurring and grade 1 retrolisthesis of L5 on S1 are related to his active duty service. As the Veteran's claim encompasses his back disorder, and the April 2008 VA examiner did not provide an opinion as to the etiology of the Veteran's back disorder, the Veteran should be provided with a new VA examination which adequately discusses the existence and etiology of all of the symptoms associated with his claimed bilateral hip disorder, to include a low back disorder manifested by bilateral hip pain. Accordingly, the case is REMANDED for the following action: 1. Provide notice to the Veteran of what information or evidence is needed in order to substantiate his claim for entitlement to service connection for a low back disorder, to include as manifested by bilateral hip pain, and assist the Veteran by making reasonable efforts to obtain the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 2. Provide the Veteran with a new VA examination to determine the existence and etiology of a bilateral hip disorder, and a low back disorder to include as manifested by bilateral hip pain. The Veteran's claims file and all electronic records must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon the evidence of record, to include the service treatment records, the post-service medical evidence, and the Veteran's lay statements, the VA examiner must provide an opinion as to the following: * Whether it is at least as likely as not that any current bilateral hip disability is etiologically related to the Veteran's active duty service? * Whether it is at least as likely as not that any current low back disability, to include as manifested by bilateral hip pain, is etiologically related to the Veteran's active duty service? A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, implement corrective procedures at once. 5. After completing the above, and any other development that may be indicated, readjudicate the Veteran's claim for entitlement to service connection for bilateral hip disability, and adjudicate entitlement to service connection for a low back disorder to include as manifested by bilateral hip pain, consistent with the Court's holdings in Clemons v. Shinseki, 23 Vet. App. 1 (2009) and Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Specifically, determine whether service connection is warranted for any of the diagnosed disabilities associated with the Veteran's reported symptoms of bilateral hip disability, including entitlement to service connection for a low back disability. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. The appellant 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). _________________________________________________ U. R. POWELL 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).