Citation Nr: 1315044 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-42 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for a spine disorder. ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1989 and again from May 1993 to May 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran claims he has disorders affecting his spine, bilateral hips, and knees, to include arthritis, due to carrying 75 pound packs of equipment during his time as an infantryman in the service. His service treatment records confirm various complaints of musculoskeletal pain, especially to his lower extremities. While he did not seek treatment for his back or hips specifically, he did seek treatment for pulled muscles and joint pain affecting his knees, shins, ankles, feet, and hamstring. Indeed, the Veteran was treated for two significant inversion right ankle sprains, as well as lacerations of the trunk and scalp incurred when he fell in a river. His DD-214, moreover, confirms his duties as a rifleman and infantryman. The Veteran's current treatment records reflects diagnoses of arthritis in all these joints, to include total hip replacements, bilaterally. The Veteran was afforded a VA examination in July 2010 where the examiner opined that the Veteran's hip and knee diagnoses were "more likely" related to his post military duties as a police officer versus his duties in the military. The examiner indicated his in-service duties could strain these joints, but that the post-service occupation was the "more likely" factor. The examiner did not address the spine. The Board previously remanded this claim to afford the Veteran a new VA examination and ascertain if any part of his back, bilateral knees, or bilateral hip diagnoses could be attributed to in-service physical labor/injuries versus post-service occupational labor/injuries. The Veteran was afforded a VA examination where he was diagnosed with degenerative joint disease of the lumbar spine and bilateral knees, and status-post bilateral hip replacements, with residuals of pain. With respect to etiology, however, the examiner merely opined that the diagnoses were "not likely due" to service based on the "review" of service treatment records. The examiner did not answer the question the Board asked and, therefore, is non-compliant with the prior Remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (holding the Board is obligated by law to ensure that the RO complies with its directives; 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). The Board further notes that arthritis is a "chronic disorder" under 38 C.F.R. § 3.309 (2012). Accordingly, the Veteran's testimony of continuity of symptomatology must be considered in determining entitlement to service connection. See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that the theory of continuity of symptomatology can be used as an alternative route to establishing service connection only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)). The Veteran's statements are competent evidence as to his in-service duties, injuries, pain, and symptoms through the years, and the Board finds the circumstances of his service further support his lay statements. See generally Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A new VA examination is indicated. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA facilities at which he received treatment for the disorders at issue. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain VA outpatient treatment records from March 2012 to the present. All attempts to secure this evidence must be documented in the claims file by the RO and VA facilities must provide a negative response if no records are available. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After all records are obtained to the extent available, the Veteran must be afforded an appropriate VA examination to determine whether any degree of the Veteran's current spine, bilateral hip, and bilateral knee disorders are related to his military service. The examiner must be directed to specifically address the Veteran's lay description of in-service duties and his description of continuity of symptomatology. The examiner must not merely limit the rationale to review of the service treatment records. As indicated in the prior remand, the examiner must reconcile if any degree of the Veteran's low back, bilateral knee, or bilateral hip disorders were caused by the physical duties of his military service, to include lifting 75 pound packs of equipment as an infantryman in light of his MOS and various in-service treatment for musculoskeletal pain. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, the evidence of record, and with consideration of the Veteran's statements as to his symptoms in service and since service discharge, the examiner must state whether any degree of the Veteran's low back, bilateral knee, or bilateral hip disorders is related to his military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).