Citation Nr: 1306517 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 09-22 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for left total hip replacement. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to September 1981, with subsequent service connection in the Naval Reserves until 2007. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Atlanta, Georgia Philadelphia, Pennsylvania. In that decision, the RO denied entitlement to service connection for left total hip replacement. In December 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the claims file. During the hearing, the record was held open for 30 days in order to afford the Veteran time to submit additional relevant evidence. The Veteran submitted additional medical evidence that was not accompanied by a waiver of initial RO consideration. However, as the evidence is duplicative of evidence already of record, no separate remand is required. The Board notes that, in addition to the physical claims file, there is also a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). During testimony before the Board in December 2012, the Veteran indicated that he had been receiving treatment for his left hip from private, as well as military, physicians since he was separated from active duty in 1981. The Veteran testified that he was seen in November 1980 and found to have a hairline fracture, and that after service, in 1983 or 1984, his private physician diagnosed arthritis in the hip. He indicated that an August 1986 Reserve medical treatment report found pain off and on for the prior two years. Afterwards, the Veteran testified that he continued to be seen by several physicians for his left hip, culminating in a total hip replacement in 2003. The Veteran has not been afforded a VA examination in connection with his claim. Based on the foregoing, the Board finds that this matter should be remanded and that, upon remand, the Veteran should be afforded a VA examination in order to determine whether the Veteran's left hip disability had its onset in active service, within one year of active service, or is otherwise the result of active military service. In this regard, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong of 38 C.F.R. § 3.159(c)(4)(I), which requires that the evidence of record 'indicate' that the claimed disability or symptoms may be associated with service, establishes a low threshold); see also Locklear v. Nicholson, 20 Vet. App. 410 (2006). In addition, the Board notes that the Veteran testified that he had extensive Reserve service beginning after his discharge in 1981 until 2007. With respect to the Veteran's Reserve service, the applicable laws and regulations permit service connection only for a disability resulting from disease or injury incurred in or aggravated coincident with active duty for training (ACDUTRA), or for disability resulting from injury during inactive duty training (IDT). See 38 U.S.C.A. § 101(22), (23), (24); 38 C.F.R. § 3.6. The actual periods during which the Veteran served on ACDUTRA or IDT in the Reserves, however, have not been verified in this case. Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or IDT. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). As such, VA should undertake efforts to obtain the Veteran's service personnel records and service treatment records from his Reserve service and verify the dates of ACDUTRA and IDT for such service. Prior to affording the Veteran a VA examination, the RO should associate with the claims file records of the Veteran's treatment for his claimed disability. Here, the Veteran has identified medical records that have not been associated with his claims file. He testified before the Board that he had been treated for his hip between 1986 and 1996 by as many as 5-7 different physicians, ranging from chiropractors to surgeons. He also indicated that he had been seen after service as early as 1983 by a private physician that diagnosed left hip arthritis. He also indicated that his orthopedic physician, a Dr. H, had treated him from 1996 to 2006. Records of the Veteran's treatment with Dr. H from 2001 through 2006 were associated with the claims file, but not records prior to 2001. Finally, a review of the claims file indicates that the Veteran sought medical treatment at the Atlanta Naval Air Station from 1985 to 1999, and a statement from the Veteran dated in January 2008 indicated that he had sought treatment from several physicians detailed in the statement. Some of the medical records from these physician have been obtained, but these are sparse and do not appear complete. Upon remand, the RO/AMC should carefully review the Veteran's claims file, including all of the Veteran's statements, including the January 2008 statement, his testimony before the Board, and his medical records. The RO/AMC should then compile a list of the physicians who have treated the Veteran for his hip disability since he left active military service in 1981, including those indicated above. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. The Veteran should also be afforded an opportunity to further identify physicians and treatment records and submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran's Reserve unit and any other appropriate source to obtain copies of the Veteran's service treatment records, service personnel records, and to verify all of the Veteran's actual periods of ACDUTRA and IDT in the Reserves. In this regard, the Veteran testified that he served in the Reserves from 1981 until 2007. VA is reminded that it should continue efforts to procure the relevant records relating to the Veteran's Reserve service until either the records are received, or until it receives specific information that the records sought do not exist or that further efforts to obtain them would be futile. To the best of it abilities, VA should make a list of the Veteran's actual periods of ACDUTRA and IDT in the Reserves and provide it to the VA examiners. All records and/or responses received should be associated with the claims file. 2. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the claims file, that have treated him since service for his claimed disability. This should specifically include treatment records identified in the Veteran's statements, including the January 2008 statement, his testimony before the Board, and his medical records. To this end, the RO/AMC should compile a list of the physicians who have treated the Veteran for his hip disability since he left military service in 1981 and request the aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. In this regard, the Board notes that the Veteran testified that he had been treated for his hip between 1986 and 1996 by as many as 5-7 different physicians, ranging from chiropractors to surgeons. He also indicated that he had been seen after service as early as 1983 by a private physician that diagnosed his with left hip arthritis. He also indicated that Dr. H had treated him from 1996 to 2006. Records of the Veteran's treatment with Dr. H from 1996 through 2001 should be sought. Finally, medical treatment records from the Atlanta Naval Air Station dating from 1985 to 1999 should be obtained. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 3. The AMC/RO should arrange for an appropriate VA examination for the purpose of determining whether the Veteran's left hip disability is related to his active military service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left hip disability was incurred during his active service from May 1975 through September 1981, or had its onset within one year of September 1981? If the response to the above question is negative, then is it at least as likely as not that the Veteran's left hip disability is the result of injury or disease incurred during any period of ACDUTRA in the Reserves or an injury during a period of IDT in the Reserves? In this regard, the examiner is asked to comment on the Veteran's statements and testimony before the Board, as well as his service and post-service medical treatment records. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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 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).