Citation Nr: 1313762 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-29 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left hip disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to August 1971, with subsequent service in the Army Reserve, to include active duty for training (ACDUTRA) from February 14, 1998, to March 14, 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a July 2012 hearing before the undersigned sitting at the RO, a transcript of which is associated with the claims file. 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 The Veteran seeks entitlement to service connection for a left hip disability. Specifically, he asserts that he suffers from a pinched nerve in his left hip that was incurred during a period of ACUDTRA. Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C.A. §§ 101(24), 106 (West 2002); 38 C.F.R. § 3.6 (2010). ACDUTRA includes the full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). A review of the Veteran's records shows that his Army Reserve unit was ordered to report to Fort McClellan, Alabama, for ACDUTRA from February 14, 1998, to March 14, 1998. He was subsequently ordered to active duty for a period of 120 days beginning on March 1, 1998, for mobilization purposes. However, a March 2, 1998, treatment note from a Fort McClellan troop medical clinic indicated that the Veteran complained of lower back pain radiating down into his left leg for 4 to 5 years. He was referred for civilian medical care, at which time it was again noted that he suffered from lower back pain for 4 to 5 years, although his symptomatology increased in the last year. The Veteran also indicated at this time that his left leg pain was worse than his low back pain. A treatment record from the Noble Army Health Clinic at Fort McClellan dated on March 9, 1998, indicated that the Veteran was non-deployable pending a computed tomography (CT) scan of the spine. On March 11, 1998, the Veteran was provided magnetic resonance imaging (MRI) of the spine, at which time it was noted that he complained of hip pain, left knee pain, and radiculopathy into the knee. However, his MRI of the lumbar spine was normal. A March 18, 1998, treatment note indicated the presence of paraesthesia of the left lateral femoral cutaneous nerve, although tests for sciatica were negative. The physician's impression was meralgia paresthetica, lateral femoral nerve entrapment. The March 18th note indicated that the Veteran was to undergo electromyography (EMG) and nerve conduction velocity (NCV) testing of the left lower extremity; however, there is no indication in the record that these tests were ever conducted. In October 2001, a physician assistant's note indicated that the Veteran denied any limitations that would interfere with his Army Reserve duties, but noted occasional left hip pain upon prolonged standing and walking. The Veteran first sought VA medical treatment in October 2005, at which time he reported experiencing left hip pain for the past 14 years. He described a constant, dull, aching soreness in his left hip that interfered with sleep and physical activities. The VA physician opined that his left hip pain seemed to be from degenerative joint disease, although there were no X-rays at the time to confirm this. At his July 2012 Travel Board hearing, the Veteran testified that he experienced left hip pain from 1998 to the present. In its January 2013 remand, the Board directed that the Veteran be provided a VA examination to determine the likely nature and etiology of his left hip disability. Significantly, the Board requested that the examiner conduct and comment upon all necessary diagnostic testing, to include EMG/NCV testing. The Veteran was provided a VA hip and thigh conditions examination in January 2013, at which time he was diagnosed as having minimal degenerative changes of the bilateral hip joints. Subjectively, the Veteran described pain, numbness, and a tingling sensation from his left buttock down the back of his thigh to below the left knee whenever he stood for any period of time. He reported experiencing these symptoms since March 1998 when he slipped off the back of a truck and landed on his tailbone during ACDUTRA. Range of motion testing and X-rays were conducted. X-rays of the hips revealed minimal degenerative changes of the hip joints, while X-rays of the lumbosacral spine revealed minimal L5-S1 degenerative discogenic disease and facet arthropathy, atherosclerotic calcification of the abdominal aorta and iliac arteries, and questionable mild aneurismal dilation of the infrarenal abdominal aorta. Significantly, however, there is no indication that any EMG/NCV testing was conducted. The January 2013 VA examiner opined that the Veteran's claimed left hip disorder was less likely than not (less than 50 percent or greater probability) incurred in or caused by an in-service injury, event, or illness. However, the examiner focused only on the orthopedic manifestations of the hip disorder. For example, in discussing the rationale behind his negative nexus opinion, the examiner explained that the location of the pain in the left hip area described by the Veteran was not typical of hip disease; rather, it was suggestive of sciatica, as it was located in this left buttock and down the left leg. However, despite the Board's instructions to conduct EMG/NCV testing to confirm or rule out neurological diagnoses such as sciatica, no such testing is apparent from the record. To the contrary, the only diagnostic tests mentioned in the examination report were the X-rays of the bilateral hips and lumbosacral spine. The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, the symptoms described, and the information submitted or developed in support of the claim. Id. at 5. Thus, the Veteran's claim here is not limited to orthopedic manifestations of a left hip disability, such as degenerative disc disease, but also encompasses any neurological manifestations of a left hip disability, to include sciatica. As such, the VA examiner's inquiry should not have ended after opining that the Veteran's left hip pain was not attributable to any degenerative joint disorder related to service. Rather, as requested by the Board in its previous remand, EMG/NCV testing should have been conducted to confirm or rule out sciatica or other neurological disorder(s) of the left hip; and, if sciatica or any additional neurological disorder(s) of the left hip were diagnosed, the examiner should have opined as to as to whether it was at least as likely as not (50 percent probability or more) etiologically related to the Veteran's military service, to include his complaints of left hip pain during his March 1998 period of ACDUTRA. The results of EMG/NCV testing are especially relevant to the Veteran's claim in this case, as he has explicitly alleged having current symptomatology due to a pinched nerve. Additionally, he was diagnosed as having paraesthesia of the left lateral femoral cutaneous nerve, meralgia paresthetica, as well as lateral femoral nerve entrapment, and was scheduled to undergo EMG/NCV testing while on ACDUTRA. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As such, the case must again be remanded to provide the Veteran with an adequate medical examination and opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination (neurological and/or peripheral nerves) to determine the likely nature and etiology of any neurological disorder of the left hip. A copy of this remand and the entire claims file must be made available to and reviewed the VA examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements. If any neurological disorder of the left hip, to include sciatica, is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or more) etiologically related to the Veteran's military service, to include his complaints of left hip pain during his March 1998 period of ACDUTRA. EMG/NCV testing, as well as any other diagnostic testing deemed necessary, should be conducted and commented upon by the examiner. All opinions should be supported by a clear rationale, which should include a discussion of the specific evidence on which the opinion is based. Specifically, the examiner is asked to comment upon the March 1998 diagnoses of paraesthesia of the left lateral femoral cutaneous nerve, meralgia paresthetica, and lateral femoral nerve entrapment while on ACDUTRA, as well as the January 2013 VA examiner's suggestion that the Veteran's current left hip/leg symptomatology was due to sciatica. 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. 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). 4. When the above development has been completed, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).