Citation Nr: 1305176 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 05-21 465A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected bilateral knee disabilities or a service-connected thoracolumbar spine disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1967 to February 1969; and from September 1975 to October 1993. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision issued by the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which in part denied service connection for a bilateral hip disorder, to include as secondary to the service-connected bilateral knee disabilities. In July 2007, the Veteran withdrew his request for a Board hearing. In March 2009, September 2010, and May 2012, this appeal was remanded for further development. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. Regrettably, the Board will find that this appeal must once again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has developed a bilateral hip disability either due to service or secondary to his service connected bilateral knee and low back disabilities. This appeal has been remanded on three previous occasions. The most recent two remands requested that the Veteran be provided a VA examination of his claimed hip disabilities and for the examiner to express an opinion as to the etiology of the claimed bilateral hip disabilities. Of note, the Board specifically requested that the possibility of aggravation of the claimed hip disabilities by the service connected disabilities be addressed. The Veteran was afforded VA examinations in September 2005, November 2010, and March 2012. The September 2005 examination diagnosed the Veteran with bilateral hip strain and the examiner opined that it was less likely than not that this disability was the result of the service connected disabilities. The November 2010 examination also diagnosed bilateral hip strain and the examiner opined that it was less likely than not that it was related to active service. The March 2012 examination continued to diagnose bilateral hip strain and the examiner opined that it was not the result of the service connected disabilities. Unfortunately, none of these examinations addressed whether or not the Veteran's bilateral hip disabilities were aggravated by the service connected disabilities. The Board notes that secondary service connection may be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that in this instance it is not necessary for the claimed disability to be caused by the service connected disability to prevail. Instead it is only necessary to show that the claimed disability increased in severity beyond the natural course of progression due to the service connected disabilities. Although these VA examiners were asked to express an opinion regarding aggravation, they did not do so. Therefore, the Board was required to once again remand the Veteran's claim in May 2012 in order to obtain the requested opinion. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). When the Veteran was again examined in June 2012, the examiner was unable to find any current diagnosis of a bilateral hip disability. He therefore did not feel able to express the requested opinion regarding aggravation. Again, the June 2012 examiner did not find current hip disability. However, The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the claim was received in July 2004. As noted above, the examinations prior to June 2012 each reached a diagnosis of bilateral hip strain. Thus, the Board must once again return this matter for additional examination and opinion in order to determine whether or not the bilateral hip strain that was previously diagnosed during the pendency of this appeal was aggravated by the Veteran's service connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of his claimed bilateral hip disabilities. If possible, this examination should be conducted by an examiner who has not previously examined the Veteran. The claims folder must be made available to the examiner for use in the study of this case. After completion of the examination and review of the record, the examiner must attempt to express the following opinions. a) From any time between July 2004 and the present time, has the Veteran had a chronic hip disability? If so, identify the disability(ies)? b) Is it as likely as not that any current hip disability was incurred due to active service? If there is no current diagnosis identified on examination, is it as likely as not that the bilateral hip strain identified in September 2005, November 2010 and March 2012 was incurred due to active service? In expressing this opinion, please discuss the relevancy if any of service treatment records noting back pain that radiated to the hips dated March 1987 and September 1989. c) If the opinions regarding direct causation are negative, is it as likely as not that any current hip disability was incurred due to the Veteran's service connected back and/or knee disabilities? If there is no current hip disability on examination, is it as likely as not that the previous diagnoses of bilateral hip strain were incurred due to the Veteran's service connected back and/or knee disabilities? d) If all of the above opinions are negative, is it as likely as not that any current hip disability was aggravated (increased in severity beyond the natural rate of progression) due to the Veteran's service connected back and/or knee disabilities? If there is no current hip disability on examination, is it as likely as not that the previous diagnoses of bilateral hip strain were aggravated due to the Veteran's service connected back and/or knee disabilities? Finally, if either a current hip disability or the previously diagnosed hip strain is determined to have been aggravated, is it possible to identify a baseline of severity before the aggravation? If so, please describe this baseline. The reasons and bases for all opinions must be provided. If the examiner is unable to express the requested opinions, the reasons and bases for this finding should be provided, and any missing evidence needed to provide the opinion should be identified. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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). _________________________________________________ ERIC S. LEBOFF 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).