Citation Nr: 1305077 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 09-35 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for left hip sciatica. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active service from February 1987 to July 1987, November 1990 to July 1991, December 1995 to June 1996, and February 2003 to February 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claim for service connection for left hip sciatica. The Veteran filed a Notice of Disagreement in March 2009. The Veteran was provided with a Statement of the Case (SOC) in August 2009 and a Supplemental Statement of the Case (SSOC) in January 2011. In a September 2009 VA Form 9, the Veteran perfected his appeal of the issue currently before the Board. The issue of migraine headaches has been raised by the record, as seen in a July 2010 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain a VA examination. Remand is required to afford the Veteran an appropriate VA examination for his left hip sciatica in order to determine its relationship to his military service. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence 'indicates' that there 'may' be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where a physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d) (2012). Here, the Veteran filed a claim on April 2008, in which he claimed that he reinjured his left hip while driving across the desert over bumpy roads and climbing in and out of trucks and Humvees while he was serving in Iraq. In his March 2009 notice of disagreement, the Veteran stated that his left hip sciatica pre-existed his active service and that it was specifically aggravated during his April 2003 to January 2005 service as a gunner escorting convoys and conducting combat patrols. The Veteran further related that he did not seek out treatment for this condition while on active service because he did not want to abandon his team for his personal health reasons. The Veteran stated that he engaged in many activities that aggravated his left hip sciatica, to include constant climbing in and out of a gun turret and wearing upwards of fifty pounds of equipment and body armor. The Veteran stated that his left hip constantly hurt and he needed assistance to get into his turret. After this service, the Veteran stated that his condition continued to deteriorate, leading to limited range of motion, constant aches and pains, inability to cross the left leg over the right, and difficulty walking after sitting for longer than ten minutes. The Veteran also stated in his September 2009 VA Form 9 that he did not seek any treatment while on any period of active duty or drill due to time constraints and the fact that his command told him to seek out private treatment. A review of the Veteran's service treatment records was negative for any discussion of left hip sciatica. A hip condition was not listed on the Veteran's entrance examination. A review of the Veteran's VA outpatient treatment records was negative for any discussion of left hip sciatica. A review of the Veteran's private treatment records shows that he was initially diagnosed and treated for his left hip sciatica in March 1988, by a Dr. W. B. This physician continued to treat the Veteran for the duration of his military service. However, there was no discussion of etiology or the effects of the Veteran's military service on this condition. The Veteran also received treatment for left hip sciatica from a Dr. C. R. in 2006. However, these records also did not include a discussion of etiology or the effects of the Veteran's military service on this condition. The Board finds that the Veteran has provided competent and credible testimony regarding his experiences of pain and aggravating factors while serving in Iraq. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Veteran is competent to testify about the pain associated with his condition, as pain is an observable symptom within the realm of his personal knowledge. He is also competent to testify about his first-hand experiences in Iraq. Further, the Board finds that the Veteran is credible, as his statements are consistent with the medical record's description of his pre-existing injury and the types of activities in which he would have engaged in Iraq. As such, the Board notes that the Veteran has presented competent evidence of a diagnosed disability, as seen in his diagnoses of left hip sciatica by Dr. W. B. and Dr. C. R. Further, the Veteran's competent and credible lay testimony regarding the daily rigors he experienced during his service in Iraq serve as evidence that there were in-service aggravating factors. Thus, the inquiry turns upon a finding of a nexus between the Veteran's left hip sciatica and aggravating circumstances during service. As the current medical evidence of record does not adequately address this issue, a VA examination should be obtained in order to explore the possible relationship of the Veteran's current condition to his military service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate in-person examination to determine the current severity and etiology of his left hip sciatica. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left hip sciatica was related to or aggravated by military service. If aggravation is found, the examiner must discuss the baseline level of the Veteran's left hip sciatica prior to his service and the degree to which it was worsened by such service. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. In particular, the examiner should consider the Veteran's lay statements regarding aggravating factors while serving in Iraq as credible. 2. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. 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, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must 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). _________________________________________________ DEBORAH W. SINGLETON 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).