Citation Nr: 1329370 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-24 394 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for a left hip disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to November 1987, with a subsequent period of unverified service. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 RO decision that denied entitlement to service connection for a left hip disability. The Veteran initially requested a personal hearing at the RO before a Veterans Law Judge of the Board, and a personal hearing before a Decision Review Officer (DRO) of the RO. A DRO hearing was scheduled in November 2009, but on the day of the hearing, the Veteran requested that this hearing be rescheduled. Another DRO hearing was scheduled in October 2011, and two days prior to the scheduled hearing, the Veteran's representative informed VA that the Veteran did not want a DRO hearing or a Board hearing. The Board finds that the Veteran has withdrawn both hearing requests. See 38 C.F.R. §§ 3.103; 20.704(e). Finally, the Board notes that in an October 2007 letter to the Veteran, the RO stated that the claim for service connection for a left hip disability was previously denied in a final 1988 decision. However, the Board finds that this is not accurate, as there is no prior final denial of the instant claim. A claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury when it is an independent claim based on distinct factual bases. See Boggs v. Peake, 520 F.3d 1330, 1334-35 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199 (2009). In her original December 1987 claim for service connection, the Veteran did not claim service connection for a left hip disability, and the January 1988 rating decision did not explicitly deny entitlement to service connection for a left hip disability. Rather, her December 1987 claim listed "SEE MEDICAL BOARD PROCEEDINGS" in the box entitled "Nature of Sickness, Disease or Injury." The RO then scheduled a VA examination of a claimed right elbow injury, and denied that claim in a January 1988 decision. There is no indication that the RO denied a claim for service connection for a left hip disability prior to the April 2008 rating decision, and thus the current claim will be decided on its merits. 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 Regrettably, additional development is required prior to appellate review of the appeal for entitlement to service connection for a left hip disability. The Veteran contends that she incurred a chronic left hip disability when she fell down the steps at Fort Sam Houston in February 1985 during service, and that the disability worsened over time. Her service treatment records reflect that in February 1985, she fell down the stairs and complained of pain; an X-ray study of the lumbosacral spine, left hip and femur was within normal limits. No fracture was seen. In April 1986, the Veteran was injured in a motor vehicle accident, and complained of left lateral hip pain where the seat belt buckle was; the diagnostic assessment was contusions. Post-service private medical records reflect that the Veteran has a current left hip disability, diagnosed as trochanteric bursitis in June 2007. A May 1994 private medical record reflects that the Veteran reported left hip pain since the prior winter when she fell down a flight of stairs; the diagnostic assessment was left hip strain. An August 1994 X-ray study of the left hip was normal. In June 2003, she was diagnosed with lumbosacral and left hip strain. As part of the duty to assist a Veteran in developing the facts and evidence concerning a claim, VA must provide the Veteran a medical examination for a medical nexus opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In light of the evidence of left hip injuries in service, the medical evidence of a current left hip disability, and the Veteran's report of a long history of left hip symptoms, the Board finds that a VA examination and medical opinion is needed to determine whether the Veteran's current left hip disability was incurred during service or is otherwise related to service. 38 C.F.R. § 3.159(c)(4); McLendon, supra; Waters, supra. The Veteran is hereby advised that failure to report for this VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. Moreover, in light of the fact that a recent Board letter to the Veteran was returned as undeliverable, she is advised that it is her responsibility to keep VA apprised of her current mailing address. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not always a one-way street and if a Veteran desires help with his claim he must cooperate with VA's efforts to assist him). Next, the Board notes that the Veteran has a verified period of active service in the U.S. Army from November 1984 to November 1987, and service treatment records from that period of service are on file. The Veteran has asserted that she also had a second period of active service from July 1989 to July 1990, with the U.S. Army Reserve. As noted by the Veteran's representative in an August 2013 written brief, the RO has not yet verified this period of service or obtained any service treatment records from this period of service. This must be done prior to appellate review. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, since the Veteran married and changed her name shortly prior to this second period of service, the search for records must be done under both her complete birth name and her complete current (married) name. The National Personnel Records Center (NPRC) and any other indicated agency should also be contacted for any and all records verifying service. Any additional pertinent VA or private medical treatment records must be obtained, as well. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center and any other indicated agency or records repository, and: (a) Request verification of the complete dates and types of the Veteran's service including any Reserve service between 1989 and 1990. The request should be made under both her birth name and her current name. (b) Request complete copies of the Veteran's service personnel records. The request should be made under both her birth name and her current name. (c) Request copies of any additional service treatment records, particularly those dated during her reported second period of service from July 1989 to July 1990. The request should be made under both her birth name and her current name. 2. Obtain copies of all additional records of any relevant VA or private medical treatment for a left hip disability dated since service that are not already on file. If any identified records cannot be obtained, this fact must be documented in the claims file and the Veteran appropriately notified in accordance with 38 C.F.R. § 3.159(e). 3. The RO/AMC should then schedule the Veteran for a VA examination to determine the etiology of the current left hip disability. The claims file must be provided to and reviewed by the examiner. The examination is to include a review of the Veteran's history and current complaints and any tests deemed necessary. The examiner is asked to offer an opinion as to whether it is at least as likely as not that the Veteran currently has a left hip disability that was incurred in or is related to active military service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. The AMC and the VA Medical Center (VAMC) should ensure that the notice of the scheduled VA examination is mailed to the Veteran at her most recent address of record. The Veteran is advised that failure to report for this VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 4. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond. 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 (Continued on the next page) 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). _________________________________________________ S. L. Kennedy 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).