Citation Nr: 1332021 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 04-22 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1987 to February 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2003 decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO determined that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a right hip injury and denied service connection for right knee and right leg conditions. The Veteran perfected his appeal as to the issues. In an October 2012 rating decision, service connection was granted for arthritis of the right knee. In February 2013, the Board denied service connection for a right leg disability, and also determined that new and material had been received to reopen the claim of entitlement to service connection for a right hip and remanded that matter. 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 remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Board remanded this case, in pertinent part, to clarify whether the Veteran has a right hip disability which is etiologically related to service. During service, the Veteran injured his right lower extremity when he struck his right hip against a door frame sustaining a contusion/hematoma of the right thigh. Post-service, an October 2003 VA x-ray examination report revealed that the Veteran was diagnosed with osteoarthritis. A subsequent December 2003 VA treatment report indicated that the Veteran's physician described his osteoarthritis as mild. An August 2008 VA x-ray examination report of the right hip was negative. A November 2010 x-ray examination report which revealed an unchanged right hip from the previous examination with no specific abnormalities noted. A December 2010 VA magnetic resonance imaging (MRI) report revealed no signs of osteonecrosis and no significant degenerative process. In the recent remand, the Board noted that in a November 2010 VA examination report, the examiner concluded that there was no right hip disability, and that x-ray examination of the right hip was normal. In a subsequent July 2012 addendum to the November 2010 VA examination report, the examiner rendered an etiological opinion as to the Veteran's right knee disability, a matter no longer on appeal, but did not provide an opinion regarding the claimed right hip disability. The Board noted that it appeared that the VA examiner did not consider the October 2003 x-ray examination report and the December 2003 diagnosis of mild osteoarthritis of the right hip. Thus, clarification was requested. The addendum was provided in July 2013. The examiner noted the 2003 x-rays findings as well as the subsequent MRI findings. The examiner stated that it was less likely than not that the claimed hip disability was incurred in or caused by claimed inservice injury, event or illness. The examiner set forth the findings, and then indicated that the subjectivity in the finding (presumably the difference in the findings) was most likely due to the different radiologist reading the results. However, the examiner then went on to state that mild changes were present in 2003 and continued in 2010 by radiographic evaluation. The examiner opined that it was as likely as not that arthritic changes were present, but were not severe on MRI due to the increased sensitivity on the exam as compared to the x-ray. The Board finds that the examiner did not answer the Board's inquiries. The examiner confirmed that the Veteran had arthritis and indicated that it was not related to service and was not severe. No rationale for the conclusion regarding whether there is an etiological connection to service was provided despite the detailed information provided to the examiner. In light of the foregoing, further action is necessary in this case, in accordance with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). As such, another medical addendum must be obtained. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the examiner who conducted provided the July 2013 addendum. If such examiner is no longer available, forward the claims file/Virtual record to another examiner who is equally qualified to render the requested opinions. If any tests or studies are required, or if any examiner determines that an additional VA examination is required in order to fully respond to the Board's inquiries, so schedule the Veteran. The examiner must review the entire claims file/Virtual record and render a fully-articulated opinion as to whether the Veteran's diagnosis of right hip arthritis is related to service or was present within one year of discharge from service. Specifically, the examiner must render an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any current right hip disability is related to the Veteran's period of service, specifically to include consideration of his March 1987 inservice injury wherein he complained of a stiff hip after striking such against a door frame and was diagnosed with a contusion/hematoma of the right thigh, or whether his right hip disability otherwise dates back to his service when considering his complaints, evaluation and treatment during his service, or was manifest within one year of service discharge. In this regard, the examiner should consider the Veteran's statements regarding the March 1987 in-service injury and his statements of symptoms after service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of inservice injury but relied on the service treatment records to provide a negative opinion). In responding, the examiner should consider that the term "as likely as not" (at least 50 percent probability) does not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The claims file/Virtual record, to include a copy of this remand, should be made available to the examiner for review in conjunction with the opinion or examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. 2. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 3. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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).