Citation Nr: 1453370 Decision Date: 12/04/14 Archive Date: 12/10/14 DOCKET NO. 11-10 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hip disorders. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to Dependents' Educational Assistance (DEA) under Chapter 35, Title 38, United States Code. § 35 (West 2002 & Supp. 2014). REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from January 21, 2004, to June 17, 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2008 and September 2009 rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The claim of entitlement to service connection for a right hip disorder has been reclassified to include both hips as this best represents the claim on appeal. In December 2013, the Veteran also testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A written transcript of the hearing has been prepared and incorporated into the evidence of record. The law also provides that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). In the present case, the Veteran has not been service-connected for any disabilities. However, her claim for service connection is being remanded for additional development. As her claims for a TDIU and DEA benefits are based on service-connected disabilities, the Board cannot proceed with those claims until there has been final adjudication of the Veteran's service connection claims. Thus, adjudication of the TDIU and DEA claims will be held in abeyance pending further development and adjudication of the Veteran's claims of entitlement to service connection. By August 2008 rating decision, the RO not only denied entitlement to service connection for a right hip disorder but also for bilateral shin conditions. In a statement submitted in July 2009, the Veteran expressed her disagreement with all of the denials in August 2008. The statement of the case (SOC) that was issued to the Veteran in March 2011 addressed the denial of service connection for a right hip disorder but did not address the denials of service connection for bilateral shin conditions. As a SOC has yet to be issued as to service connection for right and left shin conditions, those claims must be remanded to the RO via the Appeals Management Center (AMC) so that an SOC may be issued. Manlincon v. West, 12 Vet. App. 238 (1999). The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initially, as noted above, the Veteran has expressed disagreement with the August 2008 rating decision in which the RO denied entitlement to service connection not only for a hip disorder but also for right and left shin conditions. As an SOC has yet to be issued on the bilateral shin conditions, those claims must be remanded so that an SOC may be issued, and so that the Veteran has the opportunity to perfect appeals. Manlincon, supra. Only if the appeals are perfected should the issues be returned to the Board for appellate review. As to the Veteran's claim for a service connection for hip disorders, it is noted that she was treated during service for bilateral hip and shin conditions, although her complaints primarily concerned the right lower extremity. Diagnoses included bilateral tibia stress fractures and right lower extremity shin splints. She received an entry level separation for acetabulum stress fracture. Post-service private records reflect treatment for left hip complaints although X-ray was interpreted as normal in October 2008. At the December 2013 personal hearing, the Veteran testified that she was very active prior to service, but after suffering bilateral stress fractures during service, she had experienced ongoing problems. She used crutches during service and while her left-sided hip problems resolved, her right-sided hip problems did not. Now, she experienced constant pain in the right hip and it audibly popped when she shifted positions. She was in pain even when sitting and was unable to stand for any length of time. She walked with a limp to accommodate her pain. Clearly, the Veteran had bilateral hip problems during service but primarily described continuing right hip problems at the 2013 hearing. However, as she was seen for left hip problems post service at a private facility in 2008 and has testified as to what appears to be at least some bilateral hip manifestations, the Board believes that there are medical questions raised regarding both hips in this case and that medical evaluation is necessary. As already noted, the claim has been reclassified to include a bilateral hip disorder as this best represents the claim before the Board. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2014); 38 C.F.R. § 3.159(c)(4) (2014). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran and her representative should be provided an SOC on the issues of entitlement to service connection for right and left shin splints. If, and only if, substantive appeals are filed, these issues should be returned to the Board for appellate review. 2. Schedule the Veteran for a VA examination with an appropriate medical examiner to determine the nature and etiology of any disorders of the lower extremities, to include the hips or shins, found to be present. The entire claims file is to be made available to the examiner(s). All appropriate tests and studies should be accomplished and clinical findings should be reported in detail. Based on examination findings, and a review of the claims file, including the treatment records, the Veteran's statements, and a copy of this remand, the examiner is requested to answer questions and render opinions as to the following: a) Provide a diagnosis (or diagnoses) of any lower extremity disorders, to include bilateral hip or shin disorders. b) If the Veteran is found to have lower extremity disorder(s), to include hip disorder(s) or shin disorder(s), is it at least as likely as not (a 50 percent or greater probability) that the inservice bilateral tibia stress fractures and shin splints in 2004, are related to any currently diagnosed lower extremity disorders? All opinions should be accompanied by a reasoned rationale. 3. When the development requested has been completed, review the issues on appeal on the basis of the additional evidence. If any benefit sought is not granted, the Veteran shall be furnished a Supplemental Statement of the Case (SSOC), and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).