Citation Nr: 1324559 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-24 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right hip disorder, to include recurrent right hip dislocation. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1993. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before an Acting Veterans Law Judge at a March 2010 Travel Board hearing. A copy of that hearing transcript has been associated with the claims file. The presiding Acting Veterans Law Judge is no longer with the Board, and the Veteran was informed of her right to an additional hearing in a June 2012 correspondence. In June 2012 the Veteran informed the Board that she wishes for her appeal to continue and does not request an additional hearing. This appeal was previously remanded by the Board for further development in September 2010 and September 2012. The case has been returned to the Board for further appellate consideration. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is an electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on 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 Unfortunately, a review of the record reveals that an additional remand is required in this case. The Veteran is claiming entitlement to service connection for a right hip disorder which she asserts first had its onset during her active duty service and has continuously affected her since that time. As was set out in detail in the prior Board remand dated in September 2012, the Veteran's service treatment records include numerous complaints and treatments related to her lower back and hips beginning in October 1974. These records include a report of her hip giving out in October 1974, intermittent and sharp right hip pain in November 1976, and pain and instability in her sacrum and legs in April 1979. In November 1988 the Veteran reported a "grating" feeling in her hips, and in February 1989 she complained of hip arthritis and tailbone pain since the birth of her child two years prior. No X-rays taken during the Veteran's service showed findings of arthritis, but January 1991 X-rays showed a questionable "crack" in her coccyx and calcific densities within the pelvic region. Several times in 1991 she was treated for hip, lower back, and leg pain. The Veteran's private medical records contain an August 2008 diagnosis of chronic dislocation of the right hip and indicate that she has received regular treatment for hip pain and instability. The Veteran has stated that she receives treatment for her hips from private medical providers and has not received any VA treatment for these conditions. In November 2010 the Veteran was afforded a VA examination. X-rays were performed, and the Veteran was diagnosed with degenerative joint disease. The examiner opined that the Veteran's degenerative joint disease was not likely related to her active duty service. As the examiner failed to provide a complete rationale for this finding or to consider the Veteran's lay statements or prior treatment for hip instability or snapping iliotibial band, the examination report was found to be inadequate and the issue was remanded in September 2012 for a new VA examination. The Veteran was afforded an additional VA examination in April 2013. The examiner reviewed the Veteran's claims file and medical history and examined the Veteran. On examination, the examiner could palpate a snapping sensation in the Veteran's iliotibial band, and noted that the Veteran walked with a limp and fell during the examination. New X-rays were taken, and the examiner found no evidence of acetabular spurs, degenerative changes, or hypertrophic spurs. The examiner found that the Veteran did not have degenerative joint disease, but instead diagnosed the Veteran with right snapping hip syndrome. The examiner opined that this disorder was not related to the Veteran's service because this condition had not been identified or diagnosed in her service treatment records. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To be considered adequate, the medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the VA examinations of record are inadequate to decide the current claim, and the case must be remanded for a new VA examination. It is currently unclear what the Veteran's current diagnoses are regarding her hip disorder, as one examiner has diagnosed the Veteran with degenerative joint disease alone, and another with right snapping hip syndrome alone. Additionally, the April 2013 examiner did not appear to accept the Veteran's lay statements regarding hip instability in service or continuity of symptomatology since that time, and instead relied on the lack of a diagnosis of right snapping hip syndrome in service to support his finding that there was no relationship between the current disorder and service. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service symptoms and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. In this case, the Veteran has clearly and consistently described having hip instability that began during service and continued since that time, and the Board finds no reason to believe that the she is not a credible and competent witness to her own hip pain and instability. See 38 C.F.R. § 3.159(a) (2012); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (A layperson is competent to report on the onset and continuity of current symptomatology.). As such, the April 2013 opinion is inadequate for deciding the appeal, and a remand for a new examination and opinion is necessary prior to deciding this claim. Accordingly, the RO/AMC should arrange for the Veteran to undergo an additional VA orthopedic examination performed by a qualified physician, preferably one who specializes in orthopedics. The RO/AMC should forward the complete claims file to the examiner for review. Following a review of the entire record, the examiner should offer an opinion regarding the Veteran's current diagnoses pertaining to the hip, as well as their etiology and onset, taking into consideration the Veteran's service treatment records and lay statements regarding hip pain and instability during and since service, and providing a full rationale for the opinion based on all of the evidence of record. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The examination report must also indicate whether there is evidence of arthritis or not, and indicate/reconcile the various findings on that point. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as this claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO/AMC should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to her by the pertinent VA medical facility. While this matter is on remand, the RO/AMC should also give the Veteran another opportunity to present any more recent information or evidence pertinent to the claim. The record shows that the Veteran has been receiving treatment for her hip disorder through private medical providers, but VA has not requested private records for the Veteran since November 2009. The RO/AMC should request that the Veteran provide any records (or necessary releases to obtain records) related to treatment of hip disorders. Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send to the Veteran and her representative a letter requesting that she provide sufficient information and, if necessary, authorization to enable it to obtain any additional evidence pertinent to the appeal that is not currently of record, including private treatment for hip disorders since November 2009. After the Veteran has signed any appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. She should be notified of any unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records. 2. Arrange for the Veteran to undergo a VA orthopedic examination performed by a qualified physician to determine the Veteran's current diagnoses pertaining to the right hip and whether any such disorders are related to active duty service. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and lay assertions. All appropriate tests (to include X-rays, as necessary) and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination findings, medical principles, and historical records, including available service treatment records, the examiner should identify any current right hip disorders found on examination. The examiner should specifically comment on whether the Veteran has, or has had at any time since 2007, chronic right hip dislocation, snapping hip sydrome, or degenerative joint disease. If the examiner finds that the Veteran does not have degenerative joint disease, he or she should discuss the findings of the November 2010 X-ray and VA examination and explain why these previous findings were incorrect. For each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder had its onset or was aggravated during the Veteran's active duty or is otherwise related to any event or injury incurred in active duty service. If degenerative joint disease is found, the examiner should also state whether the evidence indicates that it manifested to a compensable degree within one year after her discharge from service on July 18, 1993. The reported symptoms in service should be considered and it should be discussed as to whether the in-service complaints may be earlier indications of currently found pathology. In offering any opinion, the examiner must specifically acknowledge and discuss the Veteran's treatment for hip and sacrum pain and hip instability in service and her reports of ongoing symptomatology since that time. The examiner should set forth all examination findings, along with a complete rationale for the conclusions reached. If any requested opinion cannot be provided, the examiner should clearly state the reasons why. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. She is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 38 C.F.R. § 3.655. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication. 5. After completing the requested actions, the RO/AMC should readjudicate the claim in light of all pertinent evidence. If the benefit sought on appeal remains denied, the Veteran and her representative shall be provided with a supplemental statement of the case. An appropriate period of time shall be allowed for response. The Board intimates no opinion as to the outcome in this case by the action taken herein. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL D. LYON 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).