Citation Nr: 1316183 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 08-32 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for bilateral ankle disability. 3. Entitlement to service connection for bilateral hip disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1954 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). 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 is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action on his part is required. REMAND In November 2012, the Board remanded the Veteran's claims in order to provide the Veteran with an additional examination addressing the possibility of a secondary relationship between the Veteran's claimed low back, bilateral ankle, and bilateral hip disabilities and his service-connected disabilities. The Board notes that when its remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, once VA provides a veteran with a medical examination, due process requires that VA notify the veteran prior to the adjudication of the claim of any inability to obtain evidence sought, including a VA examination with medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Turning to the facts in the instant case, the Board's October 2012 Remand instructed the RO/AMC to schedule the Veteran for a VA examination addressing whether the Veteran's service-connected left knee disability caused or aggravated his low back, bilateral ankle, or bilateral hip disabilities. The Veteran received a VA examination in February 2013, and the examiner opined that the Veteran's left knee disability would not have caused the Veteran's low back or bilateral ankle disabilities. There was no rationale accompanying this opinion, and the examiner did not address whether the Veteran's service-connected disabilities aggravated the Veteran's low back or bilateral ankle disabilities. Furthermore, the February 2013 examiner found that the Veteran did not suffer from a bilateral hip disorder, but the examiner did not address the evidence of record suggesting that the Veteran indeed suffered from a hip disability. For example, in May 2011, a VA examiner found that the Veteran suffered from a bilateral hip strain. Accordingly, on remand, an additional opinion should be solicited addressing whether the Veteran has at any time during the appeal period suffered from a bilateral hip disorder, and if so, the relationship, if any, between this condition and the Veteran's active duty military service or service-connected disabilities. An additional opinion should also be solicited addressing the relationship between the Veteran's low back and bilateral ankle disorders and his service-connected disabilities. Accordingly, the case is REMANDED for the following actions: (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. Forward the Veteran's claims file to the examiner who conducted the February 2013 VA examination. If the February 2013 examiner is no longer available, a new examination should be conducted. The February 2013 VA examiner may also request re-examination of the Veteran. The examiner should once again be requested to provide answers to the following questions, and to provide a thorough rationale: a) Has the Veteran at any time during the appeal period suffered from a bilateral hip disorder? This opinion should address the finding of the May 2011 examiner that the Veteran indeed suffered from a bilateral hip disorder. b) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's bilateral hip disorder (if found to exist at any time during the appeal period), low back disorder, or bilateral ankle disorder had an onset in service or is otherwise related to service, to include any complaints noted in the Veteran's service treatment records? c) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's bilateral hip disorder (if found to exist at any time during the appeal period), low back disorder, or bilateral ankle disorder was caused by any of the Veteran's service-connected disabilities? d) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's bilateral hip disorder (if found to exist at any time during the appeal period), low back disorder, or bilateral ankle disorder was aggravated (that is, permanently increased in severity beyond the natural progress of the disorder) by any of the Veteran's service-connected disabilities? A detailed rationale for all opinions expressed should be provided; that is, each opinion should clearly indicate how the examiner arrived at the stated conclusion. 2. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).