Citation Nr: 1303316 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-08 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a left hip disorder, diagnosed as degenerative changes of the left hip with possible avascular necrosis, to include as secondary to service-connected chondromalacia of the knees or depression and anxiety. 2. Entitlement to service connection for a low back disorder, diagnosed as degenerative disc disease of the lumbosacral spine and osteoarthritis of the lower lumbosacral spine, to include as secondary to service-connected chondromalacia of the knees or depression and anxiety. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In October 2010, the issues of the Veteran's entitlement to service connection for left hip and low back disorders, to include as due to service-connected chondromalacia of the knees, as well as the issues of entitlement to service connection for an acquired psychiatric disorder, were remanded by the Board to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. On remand, the AMC by its rating decision of September 2011 granted service connection for depression and anxiety. Following the AMC's completion of the actions sought as to the other matters on appeal, this case was returned to the Board for further review. The Veteran's representative submitted a written brief presentation in November 2011 in which the claims for service connection for left hip and low back disorders were amended to include an allegation that those disabilities were proximately due to or the result of service-connected depression and anxiety. That amended claim was accompanied by a photocopied medical article identifying a link between depression and physical symptoms. The issue of TDIU entitlement has been raised by the Veteran's representative in his November 2011 brief, but it has not been developed or adjudicated by the RO to date. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a TDIU claim is part of an increased or initial rating claim when such a claim is raised by a veteran or otherwise reasonably raised by the record.) Inasmuch as no claim for initial or increased rating is now before the Board, the raised issue of TDIU entitlement is referred to the RO for its initial development and adjudication. Thereafter, the Board sought medical opinions from the VA's Veterans Health Administration as to the nature of the relationship between the Veteran's claimed disorders of his left hip and low back and his service-connected bilateral knee disability. A copy of the opinions obtained was then furnished to the Veteran and his representative by way of the Board's correspondence of October 2012, wherein they were advised of a 60-day period from the date of that correspondence to submit additional evidence and/or argument in response. The only response received by VA was a written brief presentation offered by the Veteran's representative in December 2012. Notice is taken that 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). This appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required on his part. REMAND The Veteran has raised issues involving his entitlement to service connection for left hip and low back disorders, to include as due to service-connected depression and anxiety. Those matters have not to date been developed or adjudicated by VA and remand is required to permit these actions to be undertaken. 38 C.F.R. § 19.9 (2012). Accordingly, this case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Ensure compliance with 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012) with respect to issues of the Veteran's entitlement to service connection for left hip and low back disorders, to include as secondary to service-connected anxiety and depression. Depending upon the Veteran' response, any and all assistance due him must then be provided by VA. 2. Obtain all pertinent records of VA treatment, which are not already on file, for inclusion in the Veteran's VA claims folder. 3. Thereafter, schedule the Veteran for a VA psychiatric or psychological examination in order to ascertain the relationship, if any, between his service-connected depression and anxiety and the claimed disorders involving his left hip and low back. The claims folder should be made available to and reviewed by the VA examiner for use in the study of this case and the prepared report of such evaluation should indicate whether the claims folder was made available and reviewed. The VA examiner should undertake a complete review of the Veteran's medical and psychiatric history and current complaints, and undertake a comprehensive clinical evaluation and any tests deemed as necessary. All pertinent diagnoses should be detailed. The VA examiner should then offer an opinion as to the following, providing a complete rationale for each opinion offered: Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected depression and/or anxiety have directly caused or aggravated claimed entities involving his left hip and/or low back? If it is determined that either claimed disorder was worsened by the service-connected depression and/or anxiety, to the extent that is possible the VA examiner should indicate the approximate degree of disability or baseline (e.g., mild, moderate, severe) before the onset of the aggravation. The VA examiner is advised that that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the claim; less likely weighs against the claim. The VA examiner is further informed that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 4. Lastly, adjudicate the Veteran's claims for service connection, be it on a direct, presumptive, or secondary basis, for left hip and low back disorders, to include as secondary to his service-connected chondromalacia of the knees and his depression and anxiety. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case, which should contain notice of all relevant actions taken on the claims for benefits. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The Veteran need take no action until otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No inference should be drawn as to the outcome of this matter by the actions herein requested. 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). _________________________________________________ MILO H. HAWLEY 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).