Citation Nr: 1329121 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-07 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right hip disability, also claimed as a right knee, thigh, and leg condition. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from February 1971 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in May 2012 before the undersigned. A copy of the transcript has been associated with the claims file. In October 2012 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. 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 AMC. VA will notify the appellant if further action is required. REMAND The Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In its October 2012 remand, the Board directed the RO to obtain records from the VA Medical Center (VAMC) in Tampa, Florida. The January 2013 Supplemental Statement of the Case noted review of treatment records from the Tampa VAMC from November 2009 through November 2012. These records are not associated with either the Veteran's paper or electronic claims files. On remand, the RO must associate these records with either the Veteran's paper or electronic claims file. Following receipt of these records, the case should be forwarded to the examiner who conducted the November 2012 VA examination (if available) for a supplemental opinion as to the nature and etiology of any right lower extremity problems to include right hip and knee disability. Accordingly, the case is REMANDED for the following action: (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. Attempt to obtain any outstanding VA treatment records that may exist, including those from the VAMC in Tampa, Florida and associate them with either the Veteran's paper or electronic claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2012). The notice must contain the following information: (1) the identity of the records that could not be obtained, (2) an explanation of efforts made to obtain the records, (3) a description of any further action that will be taken including notice that VA will decide the claim based upon evidence of record unless the Veteran submits records that VA was unable to obtain and (4) notice that the Veteran is ultimately responsible for providing the evidence. 2. Review the claims file and ensure the development action above has been conducted. Then, return the Veteran's claims file to the examiner who provided the November 2012 supplemental opinion. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the examination is to determine whether the Veteran has a right lower extremity disability (to include total right hip arthroplasty and/or right knee strain) that had its onset or was aggravated during active service, or manifested to a compensable degree within one year of active service, or is otherwise related to any incident of service. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) If a new examination is warranted, the examiner must take a detailed history from the Veteran as to his symptoms in and after service. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) The examiner must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's current right lower extremity disability (to include right hip, thigh, and/or knee disability) began during active service, is related to any incident of service, and whether degenerative joint disease became manifest within one year after discharge from active service. d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. e) If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ K. PARAKKAL 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).