Citation Nr: 1335349 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-04 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for stress reactions and fractures of the right hip/pubic rami. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected stress reactions and fractures of the right hip/pubic rami. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from June 1989 to October 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2013, the Veteran testified before the undersigned at Board hearing at the Waco RO. A copy of the transcript is of record. At the hearing, the Veteran submitted additional evidence to the Board, waiving initial RO consideration of the evidence. The Board accepts the additionally-received evidence for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304 (2013). The Board notes that the Veteran's original VA claims file was lost, and that the current file has been rebuilt. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks an increased rating for stress reactions and fractures of the right hip/pubic rami and entitlement to service connection for a low back disability, to include as secondary to service-connected stress reactions and fractures of the right hip/pubic rami. Additional development is required of these issues prior to adjudication. 38 C.F.R. § 19.9(a) (2013). I. Outstanding Records A. Worker's Compensation Records At his March 2013 Board hearing, the Veteran testified that he was receiving treatment for his right hip with a private physician in the Oak Cliff area of Dallas, Texas, with respect to a Worker's Compensation claim. See Board Hearing Tr. at 3, 7-8. These records are relevant to the Veteran's claim for an increased rating, and an attempt to obtain them should be made on remand. B. VA Treatment Records At his March 2013 Board hearing, the Veteran testified that he sought treatment for his back at the Dallas VA Medical Center in or around 1991. See Board Hearing Tr. at 9-10. These records are not in the claims file, and an attempt to obtain them should be made on remand. II. VA Examinations A. Increased Rating The Veteran was afforded VA examinations in September 2008 and August 2012 in connection with his claim for an increased rating for stress reactions and fractures of the right hip/pubic rami. The Veteran later testified at his March 2012 hearing before the Board that his right hip disability has worsened since his last VA examination. See Board Hearing Tr. at 2. Further, the Veteran testified that his right hip disability was affecting his job. Id. at 4-5. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (Apr. 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, a more contemporaneous VA examination is necessary for the purpose of ascertaining the current severity of the Veteran's service-connected stress reactions and fractures of the right hip/pubic rami. B. Service Connection Here, the Veteran has argued, inter alia, that his claimed low back disability is due to his service-connected stress reactions and fractures of the right hip/pubic rami. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). Section 3.310 permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA is obliged to provide a VA medical examination 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 that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). The Board finds that a VA examination assessing whether the Veteran has a current back disability that was proximately due to his service-connected stress reactions and fractures of the right hip/pubic rami is necessary to decide this issue. In making this determination, the Board notes that the Veteran's VA records demonstrate that he has diagnoses of degenerative changes in the lumbar and thoracic spine. As such, because there is competent evidence showing that the Veteran has a current back disability, the Board finds that the first McLendon element has been satisfied. Turning to the remaining McLendon elements, the Veteran's treatment records indicate that he has suffered from an altered gait due to his hip for many years. See, e.g., October 2008 VA chiropractor treatment record. Accordingly, the Board finds that there is evidence of record indicating that the Veteran's low back disability may be associated with another service-connected disability. Significantly, however, because there is insufficient medical evidence of record addressing whether the Veteran's current low back disability is related to his service-connected stress reactions and fractures of the right hip/pubic rami, a VA examination and medical opinion addressing the etiology of his low back disability is necessary for the Board to make a decision on this claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records around 1991, and since July 13, 2012 VA treatment records from the VA Medical Center in Dallas, Texas, or from any other relevant location. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Request that the Veteran provide authorization-via VA Form 21-4142-to obtain worker's compensation treatment records from Dr. Van Hollen in Dallas, per 38 C.F.R. § 3.159(c)(1). If any of the aforementioned records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After the development outlined in items (1) and (2) is completed, schedule the Veteran for an examination to determine the current nature and severity of his service-connected stress reactions and fractures of the right hip/pubic rami. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. Any indicated studies (specifically including ranges of motion) should be completed. Objective evidence of the extent of any pain, incoordination, weakened movement, and excess fatigability on use should be described. To the extent possible, the functional impairment due to pain, incoordination, weakened movement, and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. If this is not possible, the examiner should provide an explanation as to why he or she cannot provide this information. 4. After the development outlined in items (1) and (2) is completed, schedule the Veteran for an examination to determine the nature and etiology of his low back disability. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the evaluation. As to each diagnosed low back disability (to include degenerative changes), the examiner should provide opinions on the following questions: (a.) Is it at least as likely as not (50 percent or greater) that the disability is proximately due to or the result of his service-connected stress reactions and fractures of the right hip/pubic rami, to include by chronic pain and/or an altered gait caused by this disability? (b.) If not, is it at least as likely as not (50 percent or greater) that the disability is aggravated (beyond the normal course of the disability) by his service-connected stress reactions and fractures of the right hip/pubic rami, to include by chronic pain and/or an altered gait caused by this disability? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. A comprehensive rationale must be provided for all opinions rendered, and the examiner should discuss any relevant evidence of record used in formulating the opinion. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide thorough reasons as to why an opinion cannot be made without resorting to speculation. 5. The Veteran is hereby notified that it is his responsibility to report for VA examinations, and to cooperate in the development of these issues. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Thereafter, readjudicate the issues on appeal, considering all evidence of record, to include any new evidence obtained since the last adjudication. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford him a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ Paul Sorisio Acting 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) (2013).