Citation Nr: 1610990 Decision Date: 03/17/16 Archive Date: 03/23/16 DOCKET NO. 09-05 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a disability of the left hip, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability. 3. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability. 4. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a left ankle disability. 5. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a right ankle disability. 6. Entitlement to a rating in excess of 10 percent prior to April 2, 2014 and in excess of 30 percent from June 1, 2015 onward for right knee, status post total arthroplasty. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dustin Ware, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1984 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg, Florida, which, in pertinent part, denied service connection for a left hip disability. In an August 2014 Board Hearing Brief, the Veteran's previous representative asserted the Veteran's service connected bilateral scrotal cysts with spermatocele and varicocele caused infertility; therefore, entitlement to special monthly compensation (SMC) for loss of use of a creative organ is warranted. The issue of SMC for loss of use of a creative organ has been raised by the record in an August 2014 Board Hearing Brief, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND I. Left Hip Disability The Veteran claims entitlement to service connection for a disability of the left hip, to include as secondary to any of his service-connected knee disabilities. In relation to this claim, the Veteran was provided a VA examination in May 2008 and the examiner was asked to comment on the possible relationship. However, the VA examiner indicated an inability to offer an opinion without resorting to speculation. Additionally, the Veteran has submitted a March 2013 Service-Connected Questionnaire completed by a Dr. A.J. Augustina of the Bay Pines VA that indicates it is as likely as not that current diagnosis and symptoms listed in a related assessment are the direct result of the Veteran's military service. However, numerous conditions are listed on the assessment, including at least one condition for which service connection has never been suggested or claimed. Thus, it is unclear to the Board if the doctor's opinion pertains to all the conditions listed or only certain conditions. Furthermore, the doctor has provided no supporting rational for the opinion. As such, the Board finds that a clarification should be sought from the doctor who completed the Service-Connected Questionnaire. In the event the doctor is unavailable to comment, a new VA examination should be conducted in hopes that another examiner might be able to provide an opinion without resort to speculation. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"); see also 38 C.F.R. § 4.2 (2015) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). II. Manlincon In March 2011, the Veteran submitted a statement indicating his wish to appeal issues related to his hips, ankles, knees, and lower back. This statement was submitted less than a year after a July 2010 rating decision that denied entitlement to service connection for right hip degenerative joint disease and lumbar spine degenerative joint disease; confirmed and continued pervious denials of degenerative joint disease, left and right ankles; and denied entitlement to a rating in excess of 10 percent for right knee, status post arthroscopy therapy. As such, the Veteran's statement should be read as a Notice of Disagreement with the July 2010 rating decision. The proper course of action when a timely NOD has been filed is to remand the matter to the RO. Manlincon v. West, 12 Vet. App. 238 (1999). Appropriate action, including issuance of a Statement of the Case (SOC), is now necessary with regard to these issues. 38 C.F.R. § 19.26 (2015). The Veteran will then have the opportunity to file a substantive appeal if he wishes to complete an appeal. Furthermore, following the July 2010 rating decision's denial of entitlement to a rating in excess of 10 percent for right knee, status post arthroscopy therapy, a May 2014 rating decision granted a temporary 100 percent effective April 2, 2014 with an evaluation of 30 percent assigned effective June 1, 2015. In June 2014, the Veteran filed a Notice of Disagreement with this rating decision as well, which has yet to be addressed. Making it clear that the SOC to be issued should address the ratings assigned both before and after the period of a temporary 100 percent rating as the Veteran disagrees with both ratings. Accordingly, the case is REMANDED for the following action: 1. If Dr. A.J. Augustina is still employed with the Department of Veteran's Affairs, request a clarification of the opinion provided on the March 2013 Service-Connected Questionnaire. Note: The signature on the March 2013 Service-Connected Questionnaire is not entirely clear and spelling of the doctor's name is phonetic based on the Veteran's representative's pronunciation at the August 2014 Board hearing The doctor should be asked: 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 the Veteran's left hip disability is etiologically related to his active duty service, including his in-service basketball injury? 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 the Veteran's left hip disability is proximately due (caused by) to any of his service-connected knee disabilities? 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 the Veteran's left hip disability has been aggravated beyond its normal progression by any of his service connected knee disabilities? The term "aggravation" refers to a chronic or permanent worsening of the underlying condition, as contrasted with mere temporary or intermittent flare-ups of associated symptoms that resolve with return to the baseline level of disability. So aggravation contemplates a permanent worsening of the condition above and beyond its natural progression. 2. In the event Dr. A.J. Augustina is unavailable to provide clarification schedule the Veteran for an appropriate VA examination to address the nature and etiology of his left hip disability. Following examination the examiner is requested to address subparts (a), (b), and (c) under item (1). 3. In regards to the claim of entitlement to service connection of the left hip, to include as secondary to a service-connected disability, 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. 4. In regards to the other claims, issue a Statement of the Case with respect to these issues. All appropriate appellate procedures should then be followed. The Veteran should be advised that he must complete his appeal of these issues by filing a timely substantive appeal following the issuance of a Statement of the Case. 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). _________________________________________________ MILO H. HAWLEY 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) (2015).