Citation Nr: 1314852 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-43 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right hip disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in which the RO denied service connection for recurrent right hip strain (claimed as arthritis right hip). In July 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In August 2012, the Veteran submitted additional evidence in support of his claim. This evidence was not accompanied by a waiver of review by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2012). However, for reasons discussed below, the claim must be remanded for additional development. The AOJ will have the opportunity to consider this evidence on remand. The claims file reflects that the Veteran was previously represented by the North Carolina Division of Veterans Affairs (as reflected in a September 2008 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative). In April 2011, the North Carolina Division of Veterans Affairs indicated that it was revoking its power of attorney to continue providing representation of the Veteran. See 38 C.F.R. § 14.631(f)(1) (2012). The Board recognizes the Veteran as proceeding pro se in this appeal. The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant documents. 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 Review of the record reveals that further action on the claim on appeal is warranted. Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Service connection can be granted for certain diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran asserts that he has a right hip disorder, claimed as arthritis, related to service. He has described the onset of right hip pain during service, with persistent symptoms of intermittent right hip pain since service. During the July 2012 hearing, he testified that he had right hip pain during service, which continued throughout service. He stated that, after service, his right hip pain would come and go. He indicated that he could go for a month or three months with no pain. Service treatment records document treatment for a complaint of right hip pain of three weeks duration in January 1970. The Veteran was given medication and placed on limited duty. The Veteran was afforded a VA examination to evaluate his claimed right hip disorder in May 2009. He reported that he had a right hip problem which began in 1969. He stated that he was told he had degenerative joint disease at the time he was evaluated, but no X-rays were taken and he returned to duty. He also gave a history of low back pain with degenerative joint disease/degenerative disc disease of the lumbosacral spine. The Veteran described continued intermittent pain, every other day, increased by changes in the weather. He added that his hip pain was usually noted with low back pain. He reported flares of hip pain every two to three months, with increased pain limiting movement. X-ray of the right hip was normal. The VA examiner's diagnosis was recurrent right hip strain with normal examination on that date. The examiner noted that there was one mention of right hip pain in the service treatment records, in January 1970, with no evidence of chronicity. He observed that there was no mention of a right hip problem on separation examination, nor was there any mention of a right hip problem in the treatment records from the Fayetteville VA Medical Center (VAMC). He opined that, in the absence of better documentation, he was unable to connect the incident in 1970 to the Veteran's present symptoms without speculation. The United States Court of Appeals for Veterans Claims (Court) has held that an examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation may be relied upon as long as well-supported by the facts and data of the case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In this case, however, the examiner's opinion was based on an absence of documentation regarding the Veteran's reported hip pain, including there being no mention of a right hip problem on separation examination. Significantly, however, while the Veteran's service treatment records do include an undated Report of Medical Examination at separation, only the top portion of this form is completed (with the Veteran's identifying information), with "16K20" written in the notes section. There is no indication that clinical evaluation was performed, nor is the report signed by an examiner. In January 1972, the Veteran signed a Statement of Medical Condition indicating that there had been no change in his medical condition since his December 1971 separation examination. Moreover, the VA examiner's opinion was based on a lack of better documentation regarding the Veteran's reported right hip problem, despite the fact that, during the same examination, the Veteran reported that had continued intermittent pain following his in-service treatment for right hip pain. 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 but relied on the absence of evidence in the service medical records to provide a negative opinion). The Veteran has described persistent right hip pain which comes and goes since service. Additionally, the May 2009 opinion was based on an inaccurate factual premise, insofar as the examiner stated that there was no mention of any right hip problem in the VA medical records. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative). In this regard, the Veteran presented in October 2003 with a complaint of pain in his right hip for four days. He described his pain as frequent and intermittent, but reported that it became severe four days earlier. The following day, the Veteran returned to the VAMC and reported to a different nurse that he had right hip pain. He was seen by his primary care provider, to whom he described right hip pain and denied an injury. The assessment was left hip pain. Despite this assessment, the Board observes that the reference to left hip pain may be a typographical error as the Veteran reported to three different healthcare providers over the course of two days that he was experiencing right hip pain. Moreover, a December 2003 VA treatment record indicates that the Veteran had X-ray studies of both his hips in October 2003 (which were normal). Because VA undertook to provide a VA examination to evaluate the claimed right hip disorder, the Board must ensure that such an examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). In addition to the foregoing, recent evidence from the Veteran's private physician includes an assessment of right hip discomfort and arthritis. Accordingly, the Board finds that remand for a new VA examination and medical opinion is warranted. In rendering the requested opinion, the examiner should consider the Veteran's July 2012 testimony that he had right hip pain during service, which continued throughout service, and experienced right hip pain which would come and go following service. The claims file also reflects that there are outstanding treatment records which are potentially pertinent to the appeal. In this regard, the Veteran testified during the July 2012 hearing that he first sought treatment for his right hip at the Fayetteville VAMC around 1988 or 1990, at which time his VA physician told him his right hip problem was arthritis. The claims file currently includes treatment records from the Fayetteville VAMC dated from October 2003 to August 2005 and from January 2008 to July 2009. The July 2012 testimony indicates that earlier treatment records may be available. Additionally, a January 2007 treatment record from the Veteran's private physician indicates that he had been followed at the VAMC for the past year or so. This treatment record suggests that additional treatment records, dated between August 2005 and January 2008 may be available. As any outstanding records of VA treatment are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the AMC/RO should associate with the claims file or Virtual VA e-folder any outstanding pertinent treatment records from the Fayetteville VAMC, dated prior to October 2003 (to include records from as early as 1988), between August 2005 and January 2008, and since July 2009. VA also has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). During the July 2012 hearing, the Veteran testified that he had been receiving treatment for his right hip from his private physician at Fayetteville Family Medical Care since March 2008. At the time of the hearing, the claims file included records from this facility dated from July 1998 to March 2008. Subsequent to the hearing, the Veteran submitted an additional treatment record from this facility, dated in October 2011, regarding follow-up for intermittent right hip discomfort, which includes an assessment of right hip discomfort and arthritis. This record, however, notes that the Veteran was previously seen in September 2011. This evidence indicates that additional treatment records from the Veteran's private physician, dated between March 2008 and October 2011, which are potentially pertinent to the appeal, are available. On remand, the AMC/RO should request any outstanding pertinent treatment records from Fayetteville Family Medical Care, dated between March 2008 and October 2011 and since October 2011. As a final matter, as discussed in the introduction, the Veteran is presently unrepresented in his appeal. In August 2012, a private law firm requested a copy of the Veteran's claims file. This request was accompanied by a VA Form 3288, Request for and Consent to Release of Information from Individual's Records, in which the Veteran indicated that he wanted a complete copy of his claims file furnished to a private attorney for the purpose of his VA benefits claim. A power of attorney, executed on either VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, or VA Form 21-22a, Appointment of Attorney or Agent as Claimant's Representative, is required to represent a claimant before VA and to authorize VA's disclosure of information to any person or organization representing a claimant before VA. 38 C.F.R. § 14.631(a). The Veteran has not filed a VA Form 21-22 or 21-22a since his former representative revoked its representation in April 2011. As the claim is being remanded, however, the Veteran should be asked to clarify his wishes regarding representation. Accordingly, the case is REMANDED for the following action: 1. Clarify, in writing, the Veteran's intentions regarding representation in this appeal, and associate appropriate documentation (i.e., a VA Form 21-22 or 21-22a) with the claims file or Virtual VA e-folder. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right hip. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for (1) any outstanding pertinent treatment records from the Fayetteville VAMC (dated prior to October 2003-to include records dated from as early as 1988, dated between August 2005 and January 2008, and dated since July 2009) and (2) any outstanding pertinent treatment records from the Fayetteville Family Medical Care (dated between March 2008 and October 2011 and dated since October 2011). If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 3. The Veteran should be afforded a VA examination to determine the etiology of any right hip disorder present since September 2008. All indicated tests and studies are to be performed. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Following examination of the Veteran and a review of the record, the examiner should identify any right hip disorder present at any time since September 2008. In regard to each OR any diagnosed condition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current condition had its clinical onset during active service or is related to any in-service disease, event, or injury. In rendering the requested opinion, the examiner should specifically consider the Veteran's July 2012 testimony that he had right hip pain during service, which continued throughout service, and experienced right hip pain which would come and go following service. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter that 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). _________________________________________________ P. M. DILORENZO 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).