Citation Nr: 1801875 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-20 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a hip disability. 2. Entitlement to service connection for leg disability, to include as secondary to the Veteran's service-connected back pain. WITNESS AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty from August 2002 to February 2003, from May 2003 to November 2003, from October 2004 to November 2005 and from August 2008 to April 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in June 2015; a transcript of the hearing is associated with the record. Additional evidence was received after the Board hearing; the Veteran verbally waived RO consideration of such evidence received after the Board hearing during the hearing. See 38 C.F.R. § 20.1304. The Board remanded this case in May 2016, and at that time the appeal also included claims for service connection for low back and foot disorders. In August 2016, the Appeals Management Center granted service connection for both back pain and onychomycosis of toenails. Those claims are thus resolved. The low back claim initially included consideration of hip and leg disabilities, and the denials of service connection for those disabilities were continued in an August 2016 Supplemental Statement of the Case. The claim for service connection for a leg disability is addressed in the REMAND section of this decision and is REMANDED to the agency of original jurisdiction (AMC). FINDING OF FACT Resolving all doubt in the Veteran's favor, his current hip disability is shown to be etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a hip disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination, given the favorable determination below. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran contends that he suffers from a hip disability as a result of his active duty service. There is conflicting medical evidence in this case. A May 2015 private medical note shows magnetic resonance imaging results which indicate positive SI joint sacroiliitis issues, bilaterally. The private doctor noted that the Veteran stated that he fell while he was deployed in Iraq. The private doctor indicated that the Veteran's history, symptoms and findings were consistent with a fall. In the alternative, a July 2016 VA hip and thigh condition VA examination report reflects that the Veteran did not have a current diagnosis associated with any claimed condition. The VA examiner noted that there was insufficient evidence to warrant or confirm a diagnosis of acute or chronic hip disorder or its residuals. The report shows that diagnostic testing of the hip was not performed. The Board finds that the medical evidence of record is at least in equipoise. The Board is mindful of the negative July 2016 VA examination report; however, that report only serves to place the medical evidence in a state of relative equipoise with the May 2015 private medical report. The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of equipoise. In this matter, as there is competent medical evidence both in favor of and against the claim, the Board is of the opinion that this point has been attained. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). As such, after resolving all reasonable doubt in the Veteran's favor, service connection is found to be warranted for a hip disability. This claim is thus granted in full. ORDER Entitlement to service connection for a hip disability is granted. REMAND As noted above, service connection has recently been established for back pain. The Board must now consider whether the claimed leg disorder is in any way etiologically related to service-connected back pain. The Veteran's July 2016 VA examination report indicates that it is less likely as not that the Veteran's diagnosed leg length discrepancy (i.e., the left leg is one centimeter longer than the right leg) was caused by service or by sacroiliitis, but the examiner did not specify whether the leg length discrepancy was aggravated by any back disorder. 38 C.F.R. § 3.310. This matter must be clarified on examination upon remand. Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter addressing his claim for service connection for a left leg disability, with information as to establishing a secondary service connection claim under 38 C.F.R. § 3.310. 2. Then, afford the Veteran a VA medical examination to address whether any current disabilities of the legs, to include the diagnosed leg length discrepancy, are at least as likely as not (a 50 percent or greater probability) aggravated by the service-connected back disorder. All opinions must be based upon a claims file review and must be supported by a rationale. 3. Then, readjudicate the Veteran's claim, with full consideration of 38 C.F.R. § 3.310. If the determination remains unfavorable, furnish the Veteran with a Supplemental Statement of the Case and allow him a reasonable time for response before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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). ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs