Citation Nr: 1752414 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 09-22 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral hip disability, to include as due to a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1969 to May 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in WACO, Texas. During the course of the appeal, the claims file was transferred to the RO in Houston, Texas. In the June 2009 substantive appeal, VA Form 9, the Veteran requested a Travel Board hearing. The Veteran's requests to withdraw his hearing request were received in July 2009 and June 2014. In January 2015, the Board, in part, denied the issues of entitlement to service connection for back and bilateral hip disabilities. The Veteran appealed the January 2015 Board decision for these issues to the United States Court of Appeals for Veterans Claims (Court). On November 7, 2016, a memorandum decision set aside the January 2015 Board denial of these issues and remanded them to the Board. In May 2017, the Board remanded the claims for VA etiology opinions, which were accomplished in May 2017. The claims are now returned to the Board. The claims are REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Although further delay is regrettable, for the following reasons, the Board finds remand warranted to obtain a new etiology medical opinion for the back and bilateral hip disability, to include as due to a back disability. The Board in May 2017 based on a JMPR determined that remand was warranted for an adequate medical opinion. That opinion was provided in May 2017; however, the report does not substantially comply with the Board's directive, and remand is warranted as a result. The Board notes that the Veteran reported having symptoms of a "left hip pain since [a] car hit [the Veteran] in service in the 1970's" and "occasional shooting pain that goes up [his] leg." See April 2014 VA examination report. Moreover, in a July 2007 statement, the Veteran's ex-wife indicated that she recalled the Veteran saying that he was hit by a car in service and that it really hurt his "hip." However, it does not appear that any of the Veteran's and Veteran's ex-wife's lay statements were actually considered by the May 2017 VA examiner for his direct service connection opinion. See May 2017 VA opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Upon a plain reading of the examiner's rationale, it appears that instead, the examiner based his negative direct service connection opinion for the bilateral hips solely on the Veteran's age and genetics. See May 2017 VA opinion. This is equally true for the examiner's opinion as it relates to his back disability. Based on the foregoing, the Board finds that remand is warranted for a new VA etiology opinion that properly addresses the back and bilateral hips disability issues. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an appropriate examiner for an examination regarding . The examiner is then specifically instructed to provide the following information: As to the back disorder: (a) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's back disability BEGAN IN or is related to his time in the service, yes or no? (b) In providing a response to subsection (a), the examiner is specifically instructed to review the April 2014 VA examination report, in which the Veteran reported having symptoms of back pain "since" the Veteran was "hit while walking by a car in service." As to the hip disorder: (a) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's bilateral hip disability BEGAN IN or is related to his time in the service, yes or no? In providing a response to subsection (a), the examiner is specifically instructed to review the April 2014 VA examination report, in which the Veteran reported having symptoms of a "left hip pain since [a] car hit [the Veteran] in service in the 1970's" and "occasional shooting pain that goes up [the Veteran's] leg," and the July 2007 statement from the Veteran's ex-wife, who reports that she recalls the Veteran saying that he was hit by a car in service and that it really hurt his "hip." (b) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's bilateral hip disability was CAUSED BY HIS BACK DISABILITY, yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's current psychiatric disorder(s) was CHRONICALLY WORSENED (AGGRAVATED BEYOND ITS NATURAL PROGRESSION) BY HIS BACK DISABILITY, yes or no? After answering yes or no to each of the questions in the above subsections, a clear rationale for each of the opinions given is needed. A discussion of the facts and medical principles involved and the Veteran's lay assertions should be considered in giving this opinion, with page references to the evidence used in the decision. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs