Citation Nr: 1800435 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-26 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a back disorder, to include as secondary to service-connected status post left ankle fracture. 2. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected status post left ankle fracture. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Kuczynski, Associate Counsel INTRODUCTION The Veteran had a period of active duty for training (ACDUTRA) in the New York Army National Guard from August 1976 to November 1976 and had a period of active duty in the United States Army from May 1979 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board remanded the case in May 2017 to schedule the Veteran for a hearing before a Veterans Law Judge. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The record was held open for 60 days following the hearing to allow for the submission of additional evidence. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in June 2011 in connection with his claims. The examiner diagnosed him with degenerative arthritis of the left hip joint and thoracic spine. With regard to the left hip disorder, the examiner opined that the current disorder was less likely as not related to the Veteran's service-connected left ankle disability. In so doing, he noted that the Veteran was diagnosed with a left ankle fracture in 1979 and with left hip arthritis in 2010, which was more than 30 years apart. He also explained that the left hip disorder was erosive in nature, which is likely of rheumatoid origin. However, the examiner did not address whether the Veteran's left hip disorder may have been aggravated by his service-connected left ankle disability or whether it is directly related to his military service, to include his duties therein. With regard to the back disorder, the examiner opined that the current disorder was less likely as not related to the Veteran's military service. In rendering the opinion, he noted that the Veteran was diagnosed with a lumbar strain in 1981, as well as lumbar radiculopathy in 2001; however, a current examination of the lumbar spine was functionally normal with no apparent residuals of a chronic strain on radiographs. There were degenerative changes of the thoracic spine that more than likely occurred independent of the in-service injury, given the normal lumbar spine. However, the examiner did not address whether the Veteran's current disorder may be secondary to his service-connected left ankle disability or whether it is related to the cumulative effects of his military duties. For these reasons, the Board finds that an additional VA medical opinion is needed to determine the nature and etiology of any left hip and back disorders that may be present. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left hip and back. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records, to include any records dated since 2000. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left hip disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements submitted by the Veteran. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, to include observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran currently has a left hip disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service, including as due to the cumulative effects of his military duties such as jumping and carrying equipment as a paratrooper. See August 2017 hearing transcript. The examiner should also opine as to whether it is at least as likely as not that any current left hip disorder is either caused by or aggravated by the Veteran's service-connected status post left ankle fracture. The examiner should specifically consider whether his hip disorder was caused by or permanently aggravated by compensating for or altering his gait due to his service-connected left ankle disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements submitted by the Veteran. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, to include observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran currently has a back disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service, including any symptomatology therein as well as due to cumulative effects of his military duties such as jumping and carrying equipment as a paratrooper. See August 2017 hearing transcript. The examiner should also opine as to whether it is at least as likely as not that any current back disorder is either caused by or aggravated by the Veteran's service-connected status post left ankle fracture. The examiner should specifically consider whether his back disorder was caused by or permanently aggravated by compensating for or altering his gait due to his service-connected left ankle disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If a report is deficient in any manner, the AOJ should implement corrective procedures. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).