Citation Nr: 1342955 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-03 546 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUE Entitlement to service connection for a left leg/hip disability. REPRESENTATION Appellant (the Veteran) is represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to July 1971. He had a subsequent period of active duty for training with the Army Reserve from May 1976 to September 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the RO in Boise, Idaho. The Veteran appeared at a hearing before a local hearing officer at the RO in May 2009. A transcript of the hearing is of record. In a decision dated in October 2012, the Board denied the issue on appeal. The Veteran in turn appealed that decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In an Order dated in July 2013, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's October 2012 decision and remanded this issue back to the Board for development consistent with the Joint Motion. In reviewing this case the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the "Virtual VA" system to insure a total review of the evidence. 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 As noted in the Introduction, this case involves a Joint Motion for Remand. The basis of the Joint Motion is the stipulation of the parties to the Joint Motion that a VA examination and nexus opinion are necessary to resolve the appeal. The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997). Accordingly, the appeal is REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the nature and etiology of the claimed left leg/hip disability. The relevant documents in the claims file should be made available to the VA examiner. The examiner is directed to consider the Veteran's reported history. He has reported that, during his service in Vietnam, he jumped into a ditch and landed on a rock "which caused the problems I am experiencing now." According to the Veteran's account, the battalion surgeon checked his condition and provided codeine to ease the pain. Another surgeon prescribed exercises which appeared to take care of the problem. However, over the years, the problem has persisted "on and off." In approximately 2005, the problem surfaced and has not gone away. The examiner is asked to review the Veteran's hearing testimony which records his recollection of the in-service events in detail. The Veteran testified that he was told at the time of the injury that the sciatic nerve was swollen at the hip foramen. A physical therapist gave him exercises which returned normal function within 2 weeks. A couple times since then, he has experience exacerbations which resolved with these exercises. The record reflects that the Veteran has recently been treated by a private physician for left-sided sciatica. The examiner is also directed to consider the service treatment records, which reveal no treatment for a left leg/hip injury, which contain normal clinical evaluations for the lower extremities and spine in September 1976 and August 1980, and which contain the Veteran's accounts of no history of back trouble in April 1971, September 1976, and August 1980. Of particular significance to the parties to the Joint Motion is a July 30, 2009 VA clinical record showing the Veteran's account that he experienced severe sciatic pain for a couple months following the injury in 1969, which gradually resolved until an airplane trip in 2002 when it recurred. The VA clinician assessed left sciatica "injury lt glut in [Vietnam]." The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed left hip/leg disability, diagnosed as sciatica, is causally or etiologically related to the Veteran's active service. The examiner is asked to accept the Veteran's account of his injury in service as factual, even though there is no record of it. The critical question is whether the current disability has a connection (at least as likely as not) to the problem cited in service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Please provide a rationale for the opinion. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examinations, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). This appeal 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). _________________________________________________ JOHN J. CROWLEY 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).