Citation Nr: 1320406 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-47 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, to include arthritis and scoliosis. 2. Entitlement to service connection for a left hip disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from July 1987 through November 1991, July 2002 through March 2003, and January 2005 through July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A timely Notice of Disagreement (NOD) was received from the Veteran in October 2008. After a Statement of the Case (SOC) was issued in October 2009, the Veteran perfected his appeal in November 2009, via VA Form 9 substantive appeal. 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 In support of his claims for service connection for disabilities of the spine and left hip, the Veteran has alleged that his claimed disabilities resulted from wearing body armor for extended periods of time during service in Iraq from July 2005 through June 2006. In his substantive appeal, he also alleged that he was involved in an accident in June 2006 in which he was struck by a load on a forklift and pinned against a wall. Although the Veteran reported that he experienced pain following the incident, he acknowledged that he did not seek any medical treatment. His assertions concerning the June 2006 incident are supported by buddy statements provided by A.L.R. and S.P.O; each of whom were involved in the reported incident. In the absence of contrary evidence, the Board finds that the Veteran's assertions concerning his service in Iraq and the June 2006 forklift accident are credible. A private MRI of the spine and hips performed in April 2007 indicated the presence of slight levoscoliosis with spurring in the lumbar spine. During VA treatment for hip complaints in May 2007, the treating VA physician confirmed the April 2007 findings and diagnosed left hip pain that was felt to be secondary to osteoarthritis of the low back. Subsequent VA treatment records dated through August 2007 continue to document ongoing left hip and back pain. During a November 2007 VA examination of the spine and hips, the examiner noted essentially normal findings in the hips, however, again confirmed the presence of scoliosis in the spine. The examiner noted that x-rays of the hips and spine performed during the examination did not reveal any objective findings. The examiner diagnosed lumbar spine strain, however, did not offer an opinion as to whether the diagnosed disorder was sustained during service or was related to an injury or illness sustained during service. The Board also notes that although the examiner appears to concur with the earlier findings of scoliosis, she also does not offer any discussion as to whether the scoliosis was itself sustained by the Veteran during his active duty service, was related to an injury or illness sustained during active duty service, or perhaps might be a manifestation of a lumbar spine process such as osteoarthritis or muscle strain. Finally, the Board points out that the facts and details relating to the alleged in-service June 2006 forklift accident were not known at the time of the November 2007 VA examination. Hence, that incident was not considered by the examiner in the performance of the examination or in the rendering of the examiner's diagnosis. In the absence of the foregoing opinions and conclusions, and, given that the VA examiner was unable to consider the events of the June 2006 forklift accident in rendering her diagnosis, the Board finds that the November 2007 VA examination is incomplete. Accordingly, the Veteran should be arranged to undergo a new VA examination of his spine and hips to re-examine the nature and origin of his claimed spine and left hip disabilities. 38 C.F.R. § 3.159(c)(4). Prior to arranging the VA examination requested above, and in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other private or VA treatment providers who have rendered treatment for his low back and left hip since November 2007. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, that he may submit or identify any additional evidence regarding his claims of entitlement to service connection for a lumbar spine disorder, to include arthritis and scoliosis, and a left hip disorder. This letter must also inform the Veteran about the type of information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a new VA examination of his claimed spine and left hip disabilities. The Veteran should be advised that it is his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his spine and left hip since November 2007. 2. Make efforts to obtain the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of the Veteran's claimed spine and left hip disabilities. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. For purposes of the examination, the examiner should assume that the Veteran (1) wore body armor for prolonged period during service in Iraq from July 2005 through June 2006 and (2) that he was involved in an in-service June 2006 accident in which he was struck in the groin and pinned against a wall by a load on a forklift. The examiner should provide a diagnosis pertinent to the claimed spine and left hip disabilities. For each spine and/or left hip disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (i.e. is at least a 50 percent probability) that the disability was sustained during service, or is related to an injury or illness sustained during service, to include wearing body armor for prolonged periods during service in Iraq from July 2005 through June 2006 and/or the June 2006 forklift accident. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issues of the Veteran's entitlement to service connection for a lumbar spine disorder, to include arthritis and scoliosis, and a left hip disorder should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ 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).