Citation Nr: 1337027 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-21 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right hip disability, to include as secondary to a service-connected bilateral feet disability. REPRESENTATION Appellant represented by: Andrew L. Wener, Attorney ATTORNEY FOR THE BOARD Dustin Ware, Associate Counsel INTRODUCTION The Veteran had active duty military service from August 1974 to March 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennesse. New and material evidence, in the form of a July 2010 VA examination, was received prior to the expiration of the appeal period, rendering a September 2010 notice of disagreement timely with respect to the rating decision. 38 C.F.R. § 3.156(b). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Reviewing the July 2010 VA examination and etiological opinion, the Board concludes it is inadequate with respect to the claims of direct and secondary service connection for a right hip disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2012); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The United States Court of Appeals for Veterans Claims (Court) has made it clear than an opinion will be considered inadequate unless it addresses both the caused by and aggravation avenues for secondary service-connection. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The Veteran was provided a VA examination to address whether the etiology of Veteran's right hip disability stemmed from his service connected bilateral feet disability. According to the July 2010 VA examination report, the VA examiner opined that the Veteran's right hip disability is not likely "caused by or a result of" his bilateral feet injury, this opinion is insufficient regarding the question of aggravation. El-Amin, 26 Vet. App. at 140-141 ("caused by or result of" does not permit the examiner to opine on any question other than direct causation). Additionally, the examiner further opined that the Veteran could have sustained a chondral injury to his right hip as the result of an in-service twisting injury. However, the examiner could not resolve the issue completely without resorting to mere speculation. The Court held in Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Here, the examiner does not give a basis for needing to resort to speculation and it is not apparent from review of the record. In light of these deficiencies in the July 2010 VA examination and etiological opinion contained therein, the Board finds a new examination with opinion should be provided to address the Veteran's claim of service connection for a right hip disability, to include as secondary to a service-connected bilateral feet disability. See generally Barr, 21 Vet. App. at 311. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to address the etiology of any currently diagnosed right hip disability. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file should be made available for review in connection with the examination. The examiner is requested to address the following: a. Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any current right hip disability is etiologically related to the Veteran's active military service? b. If the answer to (a) is less likely than not (i.e., probability less than 50 percent), is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any current right hip disability is proximately due (caused by) to the Veteran's service-connected bilateral feet disability? c. If the answer to (b) is less likely than not (i.e., probability less than 50 percent), is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any current right hip disability has been aggravated beyond its normal progression by the Veteran's service-connected bilateral feet disability? The examiner is requested to provide a complete rationale for any opinion expressed based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MILO H. HAWLEY 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).