Citation Nr: 1740366 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 10-45 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as secondary to the Veteran's service-connected right hamstring. 2. Entitlement to service connection for a thoracolumbar spine disability, to include as secondary to the service-connected right hamstring. REPRESENTATION Veteran represented by: Amanda R. Williams, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel INTRODUCTION The Veteran had active service from August 1986 to March 1987. He had subsequent service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a July 2013 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been included with the claim file. The Veteran appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and in a May 2017 Order, the Court granted the parties' Joint Motion for Remand (Joint Motion), vacated the Board's denial, and remanded the matter to the Board for development consistent with the Joint Motion. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The May 2017 Joint Motion stated the April 2015 VA examiner did not fully consider evidence favorable to the Veteran in rendering her opinions, and that the Board did not ensure compliance with a prior Board remand order. Specifically, the Joint Motion stated that the April 2015 VA examiner did not consider a March 2002 VA examination stating that the Veteran's right hip pain was likely caused by a service-connected right hamstring disability, and that the Veteran's low back pain was due in part to the Veteran's service-connected hamstring disability. Further, the Joint Motion stated the VA examiner did not address how the Veteran's parachute jumps completed during his period of active service might have caused or contributed to his hip and back disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to assess the nature and etiology of any diagnosed right hip disability currently present or present during the appeal period. The entire claims file as well as a copy of this remand must be provided to the examiner for review in conjunction with the examination. Following a review of the claims file, and examination of the Veteran, the examiner is to provide opinions as to the following: a. For any right hip disability identified, is it at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to the Veteran's period of active service, to include as a result of parachute jumps? b. If the above opinion is negative, the examiner is asked to provide an opinion as to whether, for any right hip disability identified, is it at least as likely as not (50 percent or greater probability) that such disability was caused by the Veteran's service-connected right hamstring disability? c. If the above opinion is negative, then the examiner is asked to provide an opinion as to whether, for any right hip disability identified, is it at least as likely as not (50 percent or greater probability) that such disability was aggravated by the Veteran's service-connected right hamstring disability? Aggravation is defined as a permanent worsening beyond the natural progression of the disability. A complete rationale must be provided for all opinions expressed. The VA examiner should address in the report the March 2002 VA examination stating the Veteran's right hip pain was likely caused by the Veteran's service-connected right hip disability. 2. Schedule the Veteran for a VA examination to assess the nature and etiology of any diagnosed thoracolumbar spine disability currently present or present during the appeal period. The entire claims file as well as a copy of this remand must be provided to the examiner for review in conjunction with the examination. Following a review of the claims file, and examination of the Veteran, the examiner is to provide opinions as to the following: a. For any thoracolumbar spine disability identified, is it at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to the Veteran's period of active service, to include as a result of parachute jumps? b. If the above opinion is negative, then the examiner is asked to provide an opinion as to whether, for any thoracolumbar spine disability identified, is it at least as likely as not (50 percent or greater probability) that such disability was caused by the Veteran's service-connected right hamstring disability? c. If the above opinion is negative, then the examiner is asked to provide an opinion as to whether, for any thoracolumbar spine disability identified, is it at least as likely as not (50 percent or greater probability) that such disability was aggravated by the Veteran's service-connected right hamstring disability? Aggravation is defined as a permanent worsening beyond the natural progression of the disability. A complete rationale must be provided for all opinions expressed. The VA examiner should address in the report the March 2002 VA examination stating the Veteran's right hip pain was likely caused by the Veteran's service-connected right hip disability. 3. The Veteran must be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655(2016). 4. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).