Citation Nr: 1302071 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-22 533A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right hip condition, to include neurologic involvement as secondary to service-connection lumbar spine disability. 2. Entitlement to service connection for a left hip condition, to include neurologic involvement as secondary to service-connection lumbar spine disability. 3. Entitlement to service connection for a left ankle condition, to include as secondary to left hip condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from July 1988 to July 2008. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In pertinent part of that rating decision, the RO denied the benefits sought on appeal. In July 2012, the Veteran and his spouse testified before the undersigned Veterans' Law Judge during a Travel Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims folder. 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 Unfortunately, after having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the Veteran's claims for entitlement to service connection for right and left hip conditions and a left ankle condition must be remanded for additional development. VA Examinations A remand is needed in order to provide the Veteran with VA examination in conjunction with his bilateral hip condition and left ankle condition claims. It is unclear from the medical evidence of record whether the Veteran has a current disability involving his left and right hips. The service treatment records show that the Veteran was diagnosed with osteoarthritis in his hips, which was not supported by objective radiographic evidence at that time. Subsequent x-rays completed in February 2007 revealed normal hips. X-rays take in September 2008 show findings of minimal sclerosis and cystic change in the lateral acetabulum; however, subsequent x-rays taken during a May 2010 VA joint examination revealed no significant degenerative changes or acute abnormalities. In the May 2010 VA joint examination report, the VA examiner concluded that previous diagnoses of degenerative joint disease were refuted by the more recent x-rays of record. The Veteran was assessed with a normal bilateral hip examination. The May 2010 VA examiner concluded that the Veteran did not have any chronic hip condition, to include arthritis. However, the May 2010 VA examiner stated that it was "a possibility that the discomfort in [the Veteran's] hips is referred pain radiating from his lower back condition." In addition, during the July 2012 Travel Board hearing, the Veteran testified that his symptomatology was predominately manifested by pain and tingling radiating down from his back into his hips. The Veteran was unaware whether any of his treating medical professionals had attributed his current bilateral hip pain to his service-connected lumbar spine disability. Based on the description of his bilateral hip symptomatology as originating from pain radiating down from his low back in conjunction with the May 2010 VA examiner's medical statement, the Board feels that additional medical evidence is needed to determine whether the Veteran has a separate neurologic condition affecting his hips, to include as secondary to his service-connected lumbar spine disability. As such, the Board finds that another VA examination is warranted to clarify the issue of whether the Veteran has current disabilities involving his hips, to include neurologic involvement as secondary to his service-connected lumbar spine disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). With respect to the Veteran's claimed left ankle condition, the current medical evidence does not demonstrate a diagnosed disorder. See the December 2008 and May 2010 VA examination reports. That being said, during the July 2012 Travel Board hearing, the Veteran testified that his left ankle symptoms have worsened since last examined by VA in 2010. He testified that he has an ankle condition manifested by symptoms of pain and tingling as well as limitation of motion. These findings were not observed during the 2010 VA Joint examination. Also, the Veteran has raised a new theory of entitlement that his claimed left ankle condition was secondary to his bilateral hip condition and/or service-connected lumbar spine disability. On remand, the Veteran should be provided with another VA examination to determine the nature and etiology of the claimed left ankle. The examiner should also address whether the Veteran has a current left ankle condition. The examiner should indicate that any current left ankle condition discovered on examination is wholly separate the symptomatology associated with his service-connected bilateral metatarsalgia and plantar fasciitis with retrocalcaneal spurs. For any diagnosed left ankle disorder, the examiner should provide a medical opinion on the likelihood that it had an onset during his period service, is related to his period of service, or is proximate caused or aggravated by any service-connected disability. The Board notes that, under 38 C.F.R. § 3.310 (a), secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition, beyond the natural progression of the disease, which is proximately due to or the result of a service- connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, was enacted. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen and adds language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Proper Notice The Board observes that the various notice letters provided to the Veteran have not addressed the requirements for establishing service connection on a secondary basis. Thus, upon remand, the Veteran also should be given appropriate VCAA notice, specifically to include notice of the requirements for establishing secondary service connection according to 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following action: 1. Ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent. In particular, the veteran should be informed of how to establish his claim of secondary service connection under 38 C.F.R. § 3.310. 2. The RO/AMC should contact the Veteran and request that he identify any additional medical treatment he has received for his claimed bilateral hip and left ankle conditions. The RO should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include any existing relevant updated VA treatment records. Efforts to obtain these records should be memorialized in the Veteran's VA claims folder. 3. After all the available records have been associated with the claims folder, to the extent available, schedule the Veteran for appropriate VA examination for his hips and left ankle. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Following a review of the relevant evidence in the claims file, obtaining a complete history from the Veteran, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to answer the following: Left and Right Hips a.) Identify whether the Veteran have a current diagnosed disorder involving his left and/or right hip, to include neurologic involvement associated with his lumbar spine disability. b). Is it at least as likely as not (50 percent or greater probability) that any diagnosed left and/or right hip condition first had onsets during the Veteran's period of service or are otherwise related to the Veteran's military service? c.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left and/or right hip condition was caused or aggravated by any of the Veteran's service-connected disabilities, specifically to include his lumbar spine disability? Left Ankle a.) Identify whether the Veteran have a current diagnosed disorder involving his left ankle (that is wholly separate for the symptomatology manifested by his service-connected bilateral foot disability), to include neurologic involvement associated with his lumbar spine disability. b). Is it at least as likely as not (50 percent or greater probability) that any left ankle condition first had an onset during the Veteran's period of service or is otherwise related to the Veteran's military service? c.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left ankle condition was caused or aggravated by any of the Veteran's bilateral hip condition or his service-connected disabilities, specifically to include his lumbar spine disability? It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. After the above is complete, readjudicate the bilateral hip and left ankle claims. If any of the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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 LANE 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).