Citation Nr: 1320816 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 07-20 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral hip degenerative joint disease, status post total bilateral hip arthroplasty, to include as secondary to myofascial strain and degenerative joint disease of the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to February 1979. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Board remanded the issue on appeal back to the RO in November 2012 in order to obtain a medical opinion as to whether the Veteran's bilateral hip disorder was etiologically linked to his active duty service or to a service-connected disability. VA arranged to have the Veteran undergo a VA examination in January 2013. The examination report demonstrates that it was not totally responsive to the Board's November 2012 remand orders. In part, the examiner was directed to provide medical opinions as to whether the current hip disorders were secondary to a service-connected disorder or were aggravated by a service-connected disorder. The report of the January 2013 VA examination reveals the examiner determined that the Veteran did not have a back disorder to a significant enough degree to result in hip arthritis. Elsewhere in the examination report, the examiner wrote that the Veteran did not injure either hip in service and the back condition and treatment for the same have not been to a sufficient level to result in hip arthritis which manifested for the Veteran similar to the general population. Therefore, the examiner opined the bilateral hip condition was not a result of the service-connected back condition. Although the examiner provided an opinion as to whether the current hip disorders were proximately caused to the service-connected back disability, the examiner did not provide any opinion as to whether the service-connected back disability aggravated the hip disorders. The November 2012 remand instructions specifically directed that an opinion be obtained as to whether the service-connected back disability aggravated the bilateral hip disorder. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). The issue on appeal must be remanded in order to obtain an addendum to the January 2013 examination report which addresses the question of whether the current bilateral hip disorder was aggravated by any service-connected disability. 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. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. 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 and his representative must then be given an opportunity to respond. 2. Thereafter, the RO must contact the examiner who prepared the January 2013 VA examination report and request that an addendum be prepared which addresses whether the Veteran's service-connected back disorder of myofascial strain and degenerative joint disease of the lumbosacral spine, with resulting neuropathy of the bilateral lower extremities, aggravates the Veteran's bilateral hip disorder. If the January 2013 VA examiner is not available to provide the opinion, another VA physician must provide an opinion as to whether the Veteran's service-connected back disorder of myofascial strain and degenerative joint disease of the lumbosacral spine, with resulting neuropathy of the bilateral lower extremities, aggravates the Veteran's bilateral hip disorder. If another examination is necessary to provide an opinion, such an examination must be conducted. 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. 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. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, 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 the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating 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 above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had 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).