Citation Nr: 1317342 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 06-27 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a left hip/torso disorder, to include as secondary to right knee internal derangement. 2. Entitlement to a right hip/torso disorder, to include as secondary to right knee internal derangement. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active military service from March 1973 to April 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in August 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In September 2009, March 2011, and August 2012 the Board remanded the appeal for further development, and it once again returns to the Board for appellate review. The Board also observes that, as mentioned in the Introduction section of its March 2011and August 2012 remands, in January 2011 correspondence the Veteran raised a claim for entitlement to service connection for bilateral hearing loss. The Board referred this matter for agency of original jurisdiction (AOJ) adjudication in March 2011 and August 2012. The record before the Board at this time continues to show that this issue has not been adjudicated by the AOJ/RO, and therefore, the Board does not have jurisdiction of it. The issue of entitlement to service connection for bilateral hearing loss is once again referred to the RO for appropriate action. In his August 2006 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge, sitting at the RO. This hearing was scheduled for January 2007, but the Veteran did not attend. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to remain withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Regrettably, the Board determines that a remand is necessary so that a clarification of the most recent VA opinion as to the etiology of the Veteran's right and left hip disorders may be obtained. With respect to the right hip, the evidence reflects that the Veteran has a current diagnosis of right hip trochanteric bursitis. In the September 2012 VA opinion, the examiner indicated that the body of scientific knowledge did not substantiate the claim that the degenerative joint disease of the Veteran's right knee causes or aggravates trochanteric bursitis. However, the Board observes that the Veteran presents with a limp to the right due to his right knee disability, and the Board is unclear whether the examiner contemplated whether the Veteran's altered gait was at least as likely as not a cause of the Veteran's right hip trochanteric bursitis. The Board notes that it was this altered gait that was the basis for the grant of service connection for the Veteran's lumbar spine disorder on a secondary basis. Therefore, the Board once again remands the claim for an opinion as to whether the Veteran's altered gait from his service-connected right knee disability causes or aggravates his right hip trochanteric bursitis. As for the left hip, the Veteran had subjective complaints of pain in the left lumbar area at the April 2011 VA examination. However, X-rays showed a normal left hip, and the VA examiner indicated in April 2011 and September 2012, that there was no disability of the left hip. Pain alone is not a disability and without a diagnosed or identifiable underlying malady or condition, cannot be service-connected. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Nevertheless, the Board observes that a January 2002 VA X-ray of the entire pelvis was conducted in connection with evaluation of the back and yielded a finding that there was mild left hip osteoarthritis. While this X-ray was performed prior to the appeal period, the Board notes that arthritis is considered a chronic disorder. 38 C.F.R. § 3.303(d). Therefore, the Board requires that a VA examiner assess the Veteran's X-rays and state whether the Veteran's left hip is completely without any sign of osteoarthritis. If the examiner finds that no osteoarthritis is present to any degree, the examiner must provide an explanation for the discrepancy between that finding and the X-ray finding in January 2002. Accordingly, the case is REMANDED for the following action: 1. Request an opinion from the same examiner who proffered the September 2012 VA opinion that addresses the relationship, if any, between the Veteran's altered gait and his right hip disorder, as well as the January 2002 X-ray that showed left hip osteoarthritis. The claims file must be made available for review, and the examination report must reflect that such review occurred. Once the review of the record is complete, the examiner should opine as to the following: a. Is it at least as likely as not that the Veteran's right hip trochanteric bursitis is caused or aggravated beyond its normal progression by an altered gait produced by the service-connected right knee disability? b. Considering all X-ray evidence of record from within the appeal period, i.e., since the Veteran filed his claim in April 2003, is the Veteran's left hip completely without osteoarthritis? If the examiner finds that the Veteran's left hip is without osteoarthritis, the examiner must explain the inconsistent finding of osteoarthritis in January 2002. c. If the examiner finds that a diagnosis of osteoarthritis, or any disorder, of the left hip is appropriate, is it at least as likely as not that the Veteran's left hip disorder is caused or aggravated beyond its normal progression by the Veteran's right knee disability, to include an altered gait produced by that service-connected disability? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the September 2012 VA examiner is unavailable, another equally qualified physician should be provided with the claims file and requested to answer the above questions. If it is determined that an opinion cannot be provided without a contemporaneous clinical examination, such examination should be scheduled. 2. After completing the above actions, the AOJ should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 3. Thereafter, the RO should 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). If any benefit sought on appeal is not granted to the Veteran's satisfaction, he, and his representative, should be provided with a supplemental statement of the case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ L. M. BARNARD Acting 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).