Citation Nr: 1336324 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-08 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for a left hip disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty for training from September 1973 to November 1976 and on active duty from November 1976 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In June 2009, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In March 2011, the Board remanded the claims for further development. The case is now again before the Board for adjudication. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals a July 2013 Appellate Brief relevant to the issue on appeal. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2013). This issue was remanded in March 2011 in order to afford the Veteran a VA examination of the left hip. While this examination was held in September 2011, the examiner failed to address all of the questions requested in the prior remand. The examiner failed to clearly indicate whether the Veteran has any current disability of the left hip, or if he has had a disability at any time during the current appeal, pursuant to McClain v. Nicholson, 21 Vet App 319 (2007) (the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to the adjudication of the claim). The examiner indicated that X-ray findings showed no degenerative or traumatic arthritis, but later indicated that X-rays taken in August 2010 showed mild osteoarthritis of the hip bilaterally. While the examiner stated that the Veteran has no current left hip disorder related to service, it is unclear whether the Veteran has any current left hip disability presently, including arthritis, and whether a possible link to service for the disorder of arthritis was considered. The examiner also failed to discuss the Veteran's ongoing treatment indicated in his VA treatment records for degenerative joint disease in his bilateral hips The Board is obligated by law to ensure that the RO and AMC comply with its directives; the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As substantial compliance with the prior remand has not been completed, and there is still insufficient evidence of record regarding the nature of the Veteran's current left hip disorder and its possible etiology in order to decide the claim, the case must be remanded for addendum VA opinion. The RO/AMC is instructed to ensure that all addendum medical opinions fully comply with all instructions set forth in this remand, pursuant to Stegall. See also 38 C.F.R. § 3.159(c)(4) (2013). Evidence of record also indicates that the Veteran has received VA medical treatment for degenerative joint disease of the hips at the Alaska VA Healthcare System in Anchorage and its affiliated facility, the Fairbanks VA Community Based Outpatient Clinic. Review of the paper and Virtual VA electronic file show that treatment records from those facilities have only been obtained from February 2000 to May 2006. On remand, additional relevant VA treatment records should be obtained and associated with the claims file. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim.). Finally, it appears that the Veteran has moved to South Carolina during the course of the appeal. As he has previously indicated that he received medical treatment from VA and private providers in Alaska, the Veteran should be given another opportunity to submit additional evidence or provide authorization to VA to obtain such evidence, and he is encouraged to do so. The RO/AMC should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization to enable it to obtain any additional evidence pertinent to the appeal that is not currently of record. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain relevant treatment records from the Alaska VA Healthcare System and its affiliated facility, the Fairbanks VA Community Based Outpatient Clinic, dating since May 2006. 2. The RO/AMC should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization to enable it to obtain any additional evidence pertinent to the appeal that is not currently of record, including any current medical treatment that has been received since the Veteran moved to South Carolina. 3. The RO/AMC then should return the claims file to the VA examiner who conducted the September 2011 examination and request that she prepare an addendum to the examination report which addresses the following: (a) What are the current diagnoses pertaining to the Veteran's claimed left hip disorder? Please include a discussion of the Veteran's past complaints and treatment for left hip pain and the likely causes of these symptoms. (b) Does the Veteran have a current diagnosis of osteoarthritis of the left hip, or has he had at any time during the appeal period (May 2005 to the present) a diagnosis of osteoarthritis of the left hip? If left hip osteoarthritis is not found, please comment on the findings of the August 2010 X-rays and the VA treatment records indicating complaints of degenerative joint disease in the bilateral hips. (c) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any of the Veteran's diagnoses, to include osteoarthritis, either currently or during the course of the appeal period, are/were etiologically related to his service? The examiner must be provided access to the claims folder, Virtual VA, and a copy of this remand. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examining physician must provide both clear conclusions and a thorough and well-reasoned medical explanation supporting any opinion offered, and the report should include a discussion of the Veteran's documented medical history, statements, and assertions. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. If the examiner who conducted the September 2011 VA examination is not available, the record should be forwarded to a suitable substitute. If it is concluded that by either the September 2011 examiner or the substitute examiner that a new examination is indicated, the Veteran should be scheduled for a new VA examination with an examiner who will address the questions listed above. The Veteran is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned 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. 4. Then, the Veteran's claim for service connection for a left hip disorder should be readjudicated, with the holding of McClain considered in this readjudication. If the determination remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. 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 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. 2013). _________________________________________________ D. C. Spickler 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).