Citation Nr: 1700824 Decision Date: 01/11/17 Archive Date: 01/18/17 DOCKET NO. 09-32 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of a pelvic stress fracture, claimed as bilateral hip condition. 2. Entitlement to service connection for herniation of the femoral neck, to include as secondary to residuals of a pelvic stress fracture. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from August 2005 to March 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appeal has been remanded in March 2013, November 2014, and June 2015, to afford the Veteran a Board hearing. In November 2015, the Veteran presented testimony before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was last remanded in March 2016, for further evidentiary development. Although the issue on appeal was adjudicated as entitlement to service connection for herniation of the left femoral neck, the medical evidence of record shows that a March 2007 magnetic resonance imaging (MRI) of the Veteran's pelvis revealed a small cyst in the right femoral head/neck region, which was most likely to be a small synovial herniation pit. Thus, the Board recharacterized the issue on appeal as 'service connection for herniation of the femoral neck' (singular) without specifying which side, as listed on the title page of this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While further delay is regrettable, the Board finds that another remand is necessary in this case. In March 2016, the Board remanded the case to afford the Veteran a VA examination and obtain a medical opinion addressing the nature and likely etiology of the Veteran's claimed pelvic and femoral neck disorders. Pursuant to the Board's remand, the Veteran underwent a VA examination in April 2016. After review of the Veteran's claims file and service treatment records, the examiner provided an opinion that while the Veteran suffered bilateral inferior pubic ramus stress fractures in 2005, there are no chronic residuals from these stress fractures. To that effect, the examiner cited to medical records from the Hughston Orthopedics dated September 2006, but stated these records showed no joint/hip problems and they noted that the Veteran underwent multiple bone scans that were within normal limits. However, the examiner does not address the March 2007 MRI report from Dr. Farber at the Hughston Clinic. This MRI report first noted that there was no occult or stress fracture in the region of the bony pelvis; the sacroiliac joints appeared to be intact; and the bilateral hips showed no evidence of occult fracture or evidence of avascular necrosis. However, the physician also found that there was "mild bilateral gluteal tendinosis of mild degree" and "some mild greater trochanteric bursitis, which was bilateral and symmetric." It was also found that there was a small-sized, smooth synovial herniation pit located in the right femoral head/neck region, to which the Veteran repeatedly referred in various written statements. Although the April 2016 VA examiner noted that the Veteran did not have a current diagnosis associated with the hips, the current disability element of a service connection claim is satisfied when a veteran has a disability at any time during the pendency of the claim, or proximate to the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Moreover, a veteran may be granted service connection even though the claimed disability resolves prior to VA's adjudication of the claim. McClain, 21 Vet. App. at 321. However, the examiner did not discuss the March 2007 MRI report and reconcile the conflicting medical findings. As the April 2016 VA examiner's opinion is inadequate and it does not comply with the Board's remand directive. Stegall v. West, 11 Vet. App. 268 (1998) (a previous remand confers upon the claimant, as a matter of law, the right to compliance with the remand orders). Consequently, it is necessary to obtain supplemental medical opinion before the Board decides the merits of the claims. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records for the Veteran from the VA Medical Center in Tuskegee, Georgia, and all associated outpatient clinics, dated from April 2016 to the present. All attempts to obtain those records should be documented in the claims file. 2. Thereafter, forward the Veteran's claims file to the examiner who conducted the April 2016 VA examination, if available, to obtain a supplemental opinion. If the April 2016 VA examiner is not available, forward the Veteran's claims file to an examiner of the appropriate expertise. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any hip disability diagnosed during the pendency of this appeal, or proximate thereto, is related to military service, specifically the stress fracture injury in September 2005. If no current hip disorder is found, the examiner must attempt to reconcile any conflicting medical findings including "mild bilateral gluteal tendinosis of mild degree" and "some mild greater trochanteric bursitis, which is bilateral and symmetric," and "a small size synovial herniation pit" located in the right femoral head/neck region, as noted in the March 2007 MRI report by Dr. Farber. In regard to the herniation of the femoral neck, the examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that such condition is proximately due to, or aggravated by, any current hip disability diagnosed during the pendency of this appeal. Aggravation is denied as chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence, both for and against the claim, is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. Any opinion expressed should be accompanied by a complete rationale that is specific to the Veteran. 3. After the above development is completed, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case and return the case to the Board. 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 2014). _________________________________________________ MICHAEL MARTIN 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) (2016).