Citation Nr: 1804599 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 17-16 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to compensation for a right hip disability under 38 U.S.C. § 1151. 3. Entitlement to service connection for a hernia, to include as secondary to a right hip disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from August 1971 to October 1973, with subsequent service in the Air National Guard of Nebraska. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In March 2017, the Veteran requested a videoconference hearing before a Veterans Law Judge. In an April 2017 written statement, the Veteran withdrew that request. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). REMAND Regarding the claim for service connection for a right hip disability, the Veteran claims that he experienced a right hip injury while serving with the Air National Guard of Nebraska in August 1984. The Veteran indicates that, while preparing for deployment, pieces of equipment fell on his low back and right hip. The Veteran claims that he sought treatment for that injury at the on-base clinic. In a March 2017 statement, the Veteran, having reviewed his service medical records, acknowledged that the records did not contain a notation regarding diagnosis or treatment for the disability. The Veteran stated that he disagreed with the completeness of the records. As the Veteran served in the Air National Guard on Nebraska from the 1970s through the 1990s, the possibility exists that he injured himself during a period of Active Duty for Training (ACDUTRA) or Inactive Duty for Training (INACDUTRA) and that there may be records related to that injury. However, the record does not contain service personnel records listing periods of ACDUTRA and INACDUTRA service, or treatment records regarding treatment for any right hip injury. A remand is necessary to attempt to obtain any potentially outstanding service medical and personnel records. In a March 2017 written statement, the Veteran reported being in receipt of Social Security Administration (SSA) disability payments and indicated that he wanted VA to procure the associated records for review during this appeal. In several additional written statements, the Veteran reported receiving treatment for the claimed right hip disability from providers whose records are not included in the file, to include Mercy Medical Center in Des Moines, Iowa; Dr. Jeff Pederson; Dr. Jill Strocken; and Dr. Irving Wolfe. A remand is necessary to obtain any outstanding treatment records. Regarding the claim for compensation for a right hip disability under 38 U.S.C. § 1151 (2012), in an August 2016 VA medical opinion, a VA examiner stated that the Veteran's claimed right hip disability was not caused by, worsened, or resulted in additional disability due to carelessness, negligence, lack of proper skills, error in judgment, or similar instance of fault on the part of VA, and was not an event not reasonably foreseeable. The examiner stated that a review of an October 2015 VA medical record indicated that the Veteran complained of right hip pain, which had been present for one month. The examiner stated that appropriate tests and imaging were completed, and an appropriate treatment plan was started. The Veteran essentially contends that his right hip disability worsened due to negligence on part of VA. In written statements, the Veteran noted that, while the examiner who wrote the August 2016 VA medical opinion commented on an instance of treatment in October 2015, the examiner did not note that the Veteran started with a visit to a VA emergency room in August 2015 due to right hip pain. Moreover, in a November 2016 letter, a private examiner reported that, had diagnosis and treatment of the Veteran's hip been accomplished earlier, presumably prior to the Veteran's first visit to that private doctor's office in April 2016, the Veteran's medical condition would have been less severe. The Board notes that the private examiner appears to have based that opinion solely on the Veteran's report of his medical history and not on a review of the record. As the Veteran has undergone a recent right hip replacement surgery, the Board finds that an examination of the right hip is not necessary. However, a remand is necessary to obtain an additional medical opinion regarding the etiology of any right hip disability diagnosed during the pendency of the appeal. As the issues of entitlement to service connection for a hernia, to include as secondary to a right hip disability, and entitlement to TDIU are inextricably intertwined with the other issues on appeal, they must also be remanded. Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. After obtaining any necessary releases, obtain and associate with the claims file all outstanding records of treatment for the claimed right hip and hernia disabilities. Associate all records or responses received with the record. All efforts to obtain records should be fully documented. At a minimum, obtain all outstanding VA records and, if properly completed release forms are procured, obtain the records from Mercy Medical Center in Des Moines, Iowa; and the offices of Dr. Jeff Pederson; Dr. Jill Strocken; and Dr. Irving Wolfe. 2. Request treatment and personnel records for the Veteran's service with the Air National Guard of Nebraska from the National Personnel Records Center (NPRC) and any other appropriate source, including, but not limited to, the headquarters of the Air National Guard of Nebraska unit with which the Veteran served and the clinic at the Air National Guard of Nebraska base in Lincoln, Nebraska. Any records obtained should be associated with the claims file. Attempt to obtain all records regarding the Veteran's ACDUTRA and INACDUTRA, including the dates of ACDUTRA and INACDUTRA to include, if necessary, pay or retirement point records. 3. Obtain from SSA copies of any decisions regarding the Veteran's claim for disability benefits and all medical records used in making any decisions. 4. Then, obtain a VA medical opinion from a qualified VA medical doctor examiner who has not previously reviewed the file and provided an opinion on this claim. The examiner must review the claims file, including the service medical records, the VA treatment reports, the private treatment records, and the November 2016 and January 2017 letters from a private examiner, suggesting that the Veteran's right hip disability worsened due to VA treatment, or delay in VA treatment. The examiner must note the review of the evidence in the report. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any right hip disability was incurred during active service, a period of ACDUTRA, or a period of INACDUTRA; or is due to any event, disease, or injury incurred during active service, a period of ACDUTRA, or a period of INACDUTRA? (b) Is it at least as likely as not (50 percent or greater probability) that any additional right hip disability was caused by VA treatment or any delay in providing treatment by VA? If so, is it at least as likely as not (50 percent or greater probability) that any right hip disability caused by VA treatment or a delay in providing VA treatment was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or was an event not reasonably foreseeable? 5. Then, readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts 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) (2017).