Citation Nr: 1332170 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-37 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected disability. 2. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran appellant had active service in the United States Navy from July 1998 to September 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO) which, in part, denied the appellant's claims of entitlement to service connection for disorders of the lumbar spine and the left hip. In August 2010, a videoconference hearing was held between the above RO and the Board in Washington, DC, before a Veterans Law Judge, who has since left the Board. A transcript of that hearing has been associated with the claims file. In August 2013, the Veteran was sent a letter notifying him that the Veterans Law Judge who held the August 2010 hearing was no longer employed by the Board and he was provided the opportunity to request another hearing. He was notified that if he did not respond within 30 days, the Board would assume that he does not desire an additional hearing and would proceed with adjudication of the issues. The Veteran has not responded to this letter. Thus, the Board will move on to deciding the claim based upon the evidence of record without additional hearing testimony. Statements by the Veteran at the June 2011 VA examination could be construed as a claim of service connection for right hip disability and that matter is referred to the agency of original jurisdiction for appropriate action. 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 This claim was remanded in pertinent part to afford the Veteran an examination and to obtain an opinion regarding the etiology of any current lumbar spine disability and/or left hip disability. In regards to the claimed left hip disorder, the June 2011 VA examiner has stated that the Veteran did not have complaints or findings of left hip disability. However, the report of a June 2011 VA x-ray noted minimal degenerative changes of the hips. It was not clarified whether this represented the presence of arthritis or other joint disease. Regarding the lumbar spine disorder, the examiner concluded with a diagnosis of nonspecific low back pain. The examiner did not describe any other underlying pathology. Service connection generally will not be granted for pain alone, however; there must be a diagnosed or identifiable underlying malady or condition. See Sanchez-Benitez v. West, 13 Vet. App. 283, 285 (1999). X-ray findings revealed mild endplate impressions throughout L2 through L5 and in the inferior endplate of L5. There was no discussion whether this represented orthopedic disease of the lumbar spine. In this case, clarification is needed as to whether the X-ray findings constitute evidence of an underlying disorder as is required for service connection. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Furthermore the examiner provided a faulty opinion stating that the claimed back pain was not related to service as complaints were too remote in time from the 1999 motor vehicle accident, and then incorrectly described records from 2005 that addressed claimed sequelae from the accident as being post service records. The 2005 records that include complaints of back pain with left leg involvement are from his period of active duty. Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the June 2011 VA examiner for an addendum opinion (or if unavailable, to another examiner). After considering the results of the x-ray reports for the left hip and lumbar spine, please indicate whether the Veteran exhibits chronic left hip and/or lumbar spine disability. If so, for any disability present, is there a 50 percent probability or greater that it had its clinical onset during his military service or is it otherwise related to active duty? The examiner must discuss the clinical significance of the Veteran's treatment for a fractured pelvis and lacerated spleen in service and particularly in relation to his current complaints and all radiographic/imaging results. Additionally the examiner should address any complaints pertaining to the lumbar spine in the service treatment records up to September 2006. If arthritis is diagnosed for any claimed disorder remaining on appeal, please state whether its onset was within one year of the Veteran's separation from service in September 2006. If the onset of any chronic left hip and/or lumbar spine disability was not during the Veteran's active service, is there a 50 percent probability or greater that it was caused or aggravated by any or all of his service-connected disabilities (status post spleen laceration; residuals of a left pubic ramus fracture; and ingrown right toenail)? If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation by service-connected disability. If the examiner finds that another examination is needed to provide the opinions, one should be scheduled. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examining physician should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the physician concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the physician should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's current claimed thoracolumbar spine and left hip disorders. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Thereafter, consider all of the evidence of record and re-adjudicate the appellant's claims. Ensure that direct, presumptive, aggravation, and secondary theories of service connection are considered. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the service connection issues currently on appeal. An appropriate period of time for response must be given. 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). _________________________________________________ THOMAS J. DANNAHER 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).