Citation Nr: 1314846 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-45 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected low back strain and right knee patellofemoral syndrome. ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1998 to November 2002, and in the United States Army Reserves from November 2002 to November 2006. She served a second period of active duty from February 2005 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied entitlement to service connection for a bilateral hip disorder on both a direct and presumptive basis. On reconsideration of the claim in April 2009, the RO continued the denial of service connection for a bilateral hip disorder, to include as secondary to service-connected right knee patellofemoral syndrome and lumbosacral strain. 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 asserts that she currently has a bilateral hip condition that was incurred in or aggravated by her active military service or service-connected right knee patellofemoral syndrome and lumbosacral strain disabilities. Also, most recently, in a February 2011, she indicated that she had recently been diagnosed with fibromyalgia. She requested that she be afforded a VA examination to determine whether her bilateral hip complaints were an early manifestation of her recently diagnosed fibromyalgia. She stressed that she was not raising an additional claim for service connection for fibromyalgia; rather, her statement was in support of her original claim for service connection for a bilateral hip disorder. The Veteran's various statements of record assert that service connection is warranted for a bilateral hip disorder as she claims that such (1) was incurred during military service; (2) is related to wear and tear of her hip joints due to physical activity associated with her military occupational specialty during her first period of active service of a construction equipment supervisor, which required climbing and jumping from heavy constriction equipment and/or her military occupational specialty of a recruiter during her second period of active service, which required that she sit for long periods of time (3) is proximately due to or has been aggravated by her service-connected right knee patellofemoral syndrome and/or lumbosacral strain disabilities due to altered body mechanics and overcompensation for those disabilities, or; (4) is due to fibromyalgia, which may have had its onset during a period of active military service or active duty for training purposes (ACDUTRA). At the outset, the Board notes that a review of the Veteran's service treatment records shows initial complaints of low back and right knee pain in a January 2002 pre-deployment health assessment. During separation examination during her first period of active service in September 2002, the Veteran reported a history of recurrent back pain and swollen and painful joints. Diagnoses at that time included chronic recurrent low back pain with menstruation and chronic patellofemoral syndrome of the right knee. Although prior adjudicators have stated that the record is negative for evidence of a bilateral hip disorder during the Veteran's military service, the Board observes that an April 2006 active duty service treatment record shows complaints of intermittent aching in her knees and an initial complaint of bilateral hip pain when sitting for long periods of time. Her military occupational specialty at that time and since February 2005 was a recruiter, which entailed 10 to 14 hour work days six to seven days a week with frequent sitting for long periods of time. Pain was relieved with movement and exercise. A past history of patellofemoral syndrome during active service was noted; however, it generally was not regularly bothersome prior to April 2006. Diagnostic assessment in April 2006 was patellofemoral syndrome, only bothersome when sitting for long periods. There was no diagnosis stated pertaining to the Veteran's complaints of bilateral hip pain. In her October 2007 claim for service connection for a bilateral hip disorder, the Veteran indicated that onset of the claimed condition occurred in 2004. She indicated that treatment for her claimed bilateral hip disorder would be annotated in her service treatment records from Fort Drum, New York. Thus, it appears that the Veteran's claimed bilateral hip disorder may have had its onset during her reserve service and prior to her second period of active service. In this regard, the Board notes that service connection may be granted for disease or injury incurred in or aggravated in the line of duty during a period of active duty for training purposes (ACDUTRA); however, service connection may be granted for injury, but not disease, incurred in or aggravated in the line of duty during a period of inactive duty for training purposes (INACDUTRA). The Veteran's service personnel records have not been associated with the claims file. Thus, the dates of any periods of ACDUCTRA/INACDUTRA service during the Veteran's reserve service from November 2002 to February 2005 cannot be determined. Accordingly, additional development is warranted for obtainment of the Veteran's service personnel records so that the specific dates of ACDUTRA/INACDUTRA may be determined. Similarly, it is unclear whether the Veteran's complete service treatment records have been obtained. Service treatment records received from the service department date from 1998 to 2003. Additional active and reserve service treatment records dating from January 2004 to September 2006 were obtained from the Upstate New York VA Health Care System, to include records from the Batavia and Buffalo, New York VA Medical Centers. A September 2005 VA treatment record dated during the Veteran's second period of active duty service indicated that she had to undergo a psychiatric consultation at Fort Drum military base to ensure that her service records would be followed more closely. There is no indication that service treatment records have been obtained from Fort Drum dating since 2004. Accordingly, additional development is warranted to ensure that the Veteran's service treatment records are complete. Once the Veteran's service personnel records are obtained, service treatment records dating since her discharge from her first period of active service in November 2002 should be requested from any appropriate records repository, to specifically include the National Personnel Records Center (NPRC), the Records Management Center (RMC), and all reserve units to which she had been assigned since her discharge from her first period of active service in November 2002. In addition, as noted above, in February 2011, the Veteran indicated that she had recently been diagnosed with fibromyalgia which she claimed may have manifested during service with symptoms of hip pain. VA treatment records pertaining to the Veteran were most recently obtained from the VA Medical Center in Buffalo, New York in March 2006; Batavia, New York in September 2007; Cleveland, Ohio in April 2008, and; the Warren, Ohio VA Outpatient Clinic in September 2008. Accordingly ongoing VA treatment records, if any, must be obtained. Finally, the Board notes that the Veteran was afforded VA examinations in April 2008 and February 2009 to determine the nature and etiology of any hip disorder diagnosed on examination and during the claim. In April 2008, the examiner diagnosed bilateral hip strain, lumbosacral strain, and bilateral patellofemoral syndrome. Unfortunately, a medical opinion as to whether the Veteran's bilateral hip strain diagnosed on examination at least as likely as not was incurred in or aggravated by service or service-connected low back and right knee disabilities was not provided. The Veteran was afforded an additional VA examination with the same examiner in February 2009. The examiner noted that the Veteran has had patellofemoral syndrome of her right knee since approximately 2000. At the time of examination, she occasionally had similar symptoms in her left knee. She also experienced occasional popping and strain in her bilateral hips, however, "some popping may be more sick related." The examiner stated that the Veteran's hip pain may be related to back pain just as her back pain may be radiating into her hips as opposed to there being a separate bilateral hip disorder. He stated that no separate bilateral hip injury, trauma, or surgery had been noted. Notwithstanding the foregoing, in addition to his prior diagnosis of a bilateral hip strain on VA examination in April 2008, and notation of a diagnosis of sciatica in an August 2008 VA treatment note, diagnostic assessment pertaining to the Veteran's claimed bilateral hip disorder was normal examination of both hips. The examiner concluded that patellofemoral syndrome of the Veteran's left knee is naturally occurring and unrelated to her service-connected right knee patellofemoral syndrome. In addition, no separate hip pathology was noted or identified on examination. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the Board finds that the February 2009 examination is inadequate as it did not take into account the various diagnoses and treatment for a bilateral hip disorder noted through the appeal. To date, a clear and competent medical opinion has not been received as to whether the Veteran's diagnosed bilateral hip strain and/or sciatica may have been incurred during or caused or aggravated by any incident of her military service or service-connected low back and right knee disabilities. On remand, the Board finds another examination is necessary to address the deficiencies noted herein. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). If the examiner concludes that there is no current bilateral hip disorder, to include a bilateral hip strain and sciatica, he or she should attempt to reconcile findings in the record which document diagnoses and treatment for such a disorder. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC) and request the Veteran's service personnel records. If additional development through any other relevant facility is needed to obtain the Veteran's service personnel records, that development must be undertaken. 2. Contact the United States Army Reserves Headquarters and request verification of all dates of active duty, active duty training (ACDUTRA), and inactive duty training (INACDUTRA). Once completed, associate a written summary of all such periods with the claims file. If necessary, contact the Defense Finance and Accounting Service and request that they identify the specific dates of all periods of active duty, active duty training (ACDUTRA), and inactive duty training (INACDUTRA) in the United States Army Reserves from November 2002 to February 2005. 3. Attempt to locate all of the Veteran's service treatment records and examination reports pertaining her active duty service and any periods of ACDUTRA/INACDUTRA, to specifically include any enlistment and separation examinations pertaining to her last period of active duty service from February 2005 to November 2006. Procedures outlined in M21-1MR, III.iii.2.B.13 must be followed. If additional development through any other relevant facility is needed to obtain any records requested (to include the NPRC and Records Management Center), that development must be undertaken. Service treatment records and examination reports should also be requested from all reserve units to which the Veteran has been assigned since her November 2002 discharge from her first period active service, which appears to include 227th QM Co. (PET) (WSS1AA) Niagara Falls, New York. 4. With any necessary assistance from the Veteran, obtain all outstanding treatment records, to include but not exclusive of ongoing VA treatment records from the VA Medical Centers in Buffalo, New York dating since March 2006; Batavia, New York dating since September 2007; Cleveland, Ohio dating since April 2008, and; the VA Outpatient Clinic in Warren, Ohio dating since September 2008. All efforts to obtain VA and any identified private treatment records should be fully documented in the claims folder. If the RO/AMC is unable to secure any Federal records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 5. Thereafter, schedule the Veteran for an examination to ascertain the nature and etiology of any disorder of either hip diagnosed on examination and since her the October 2007 claim for service connection was received. As of the date of this remand, diagnosed hip disorders include bilateral hip strain (see April 2008 VA examination) and sciatica (see August 2008 Warren CBOC history and physical note). The Veteran also alleged in a February 2011 statement that she had recently been diagnosed with fibromyalgia. The claims file, to include any relevant records contain in Virtual VA, the Veteran's statements and contentions of record, and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. All necessary tests and studies deemed necessary should be conducted, to include x-ray examination of the Veteran's bilateral hips and neurological EMG/NCG testing to determine whether her bilateral hip pain is a neurological manifestation of her service-connected lumbosacral strain as opposed to a separate hip disorder given that this possibility was suggested by the February 2009 examiner. Following a review of the record and examination of the Veteran, the examiner should: a) Identify any disability of either hip that is (1) currently shown or (2) indicated by the record at any time since October 2007. b) For any currently manifested disorder of either or both hip(s), the provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disability was either incurred during active service, a period of ACDUTRA (disease or injury), or a period of INACDUTRA (injury, but not disease), or caused by or aggravated by the Veteran's service-connected right knee patellofemoral syndrome and/or lumbosacral strain. c) If the examiner determines that current a disorder of either hip is aggravated by the Veteran's service-connected right knee patellofemoral syndrome and/or lumbosacral strain disabilities, he/she should report the baseline level of severity of the nonservice-connected hip disorder prior to the onset of aggravation. If some of the increase in severity of the nonservice-connected disability is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. The examiner should reconcile any opinion with the evidence of record, and cite to the record as appropriate. The examiner must also consider the Court's holding in McClain v. Nicholson, 21 Vet App 319 (2007), that the requirement 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 adjudication of the claim. The examiner may not exclude the possibility that the Veteran exhibited a right hip disorder during the pendency of this appeal that has resolved. In the event that the VA examination does not show a current disorder of either hip, the type of scenario addressed under McClain must be addressed on examination as well. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinions, it is essential that he/she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 7. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case, and afford the Veteran an opportunity to respond. Thereafter, the case must be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ DAVID L. WIGHT 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).