Citation Nr: 1314804 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-09 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and observer (spouse) B.B. ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from February 1952 to November 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). The RO had denied reopening the claim for service connection for a hip disability. In September 2012, the Veteran testified at a hearing at the RO in San Antonio, Texas, before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of that hearing has been associated with the claims file. In a December 2012 decision, the Board reopened the claim of service connection for a hip disability. See 38 U.S.C.A. §§ 5108, 7105 (West 2002); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board then remanded the claim for additional development to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note 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). The appeal of service connection for a hip disability is again REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND This appeal for service connection for a hip disability was remanded by the Board in December 2012 for additional development. The Board had determined that in addition to evidence of a fall that the Veteran had sustained in service, there was competent and credible testimony from him regarding a continuity of symptoms since the service injury, along with current evidence of a bilateral hip disorder, suspected as traumatic arthritis. Pursuant to the VA duty to assist, this evidence required a medical examination and opinion regarding the etiology of the Veteran's hip disability and its relationship to his military service. See 38 C.F.R. § 3.159; duty to assist McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In the Board remand requesting an examination and opinion on the matter of etiology and causal relationship, it was mentioned that the examiner was to note that Veteran was competent to attest to a continuity of symptoms since service and his statements were deemed credible. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). It must be mentioned that establishing continuity of symptomatology under 38 U.S.C.A. § 3.303(b) is an alternative method of showing chronicity (permanency) of disease or injury in service to in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Further, the provisions of 38 C.F.R. § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). Arthritis or degenerative joint disease is one of the listed diseases. Service connection for arthritis may be established based on a legal "presumption" by showing that it either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). In March 2013, a VA medical examination of the hips was performed. The medical diagnoses included osteoarthritis of the hips, and trochanteric bursitis hip. In the medical history, a fall the Veteran sustained in 1953 and injury of his right hip was reported. It was mentioned that the Veteran noted that his (hip) pain had continued through the years. The VA examiner acknowledged that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, the examiner mentioned the Veteran's osteoarthritis was a condition that evolved over the years and was due to wear and tear and past injuries. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined that an examination was inadequate where the examiner did not comment on the Veteran's report of injury in service and, instead, relied on the absence of evidence in his STRs to provide a negative opinion. And although the examiner pointed out that there were no hip complaints at the time of the service injury and during service, there is no consideration by the examiner that pertains to the Veteran's report of a continuity of symptoms through the years that has been deemed credible. The Veteran's lay statements and continuity of symptoms is particularly important here since it was recently held that a showing of continuity of symptoms pertains only to those disabilities identified in 38 C.F.R. § 3.303(b), including arthritis. Walker, supra. As such, an additional or addendum etiological opinion should be obtained, specifically addressing the Veteran's continuity of symptoms, including his lay testimony that he has had (hip) pain complaints through the years. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. If still available, have the March 2013 VA C & P examiner, who already provided a medical opinion, provide additional supplemental comment concerning the etiology of the Veteran's hip disability. The examiner must consider the Veteran's lay statements and testimony concerning his hip disability, including his history of complaints or continuity of symptoms, specifically that he has had continued hip pain through the years, since his service injury in 1953. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records (STRs) to provide a negative opinion). Then provide a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the Veteran's hip disorder(s), including arthritis, are attributable to his military service ,including due to a service fall that he sustained in 1953 or within one year of his discharge in November 1954 for arthritis. If, after consideration of all pertinent facts, additional test results, or procurable data, the examiner cannot provide an opinion without resorting to mere speculation, then this must be expressly indicated and, more importantly, the examiner must explain why the requested opinion is not possible or feasible. Merely saying he cannot comment will not suffice. To facilitate providing this additional comment, the claims file, including a complete copy of this remand, must again be made available to the examiner for review of the pertinent medical and other history and to ensure he addresses these additional points that need addressing. If, for whatever reason, that examiner is no longer available to provide this additional comment, then have someone else comment that is equally qualified. In this eventuality, however, the Veteran may need to first be reexamined. But this is left to the designee's discretion. Whoever is designed to provide this additional comment must discuss the medical rationale of any opinion offered, whether favorable or unfavorable, based on the findings on examination (including if another examination becomes necessary) and from information obtained from review of the claims file. In the event another examination is needed, the Veteran is hereby advised that failure to report for this additional examination, without good cause, may have adverse consequences on this pending claim as it would require adjudicating his claim based on the evidence already in the file. See 38 C.F.R. § 3.655. 2. Then readjudicate the claim in light of all additional evidence. If the claim is not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. 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). _________________________________________________ JOHN Z. JONES 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).