Citation Nr: 1806268 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-35 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a left hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Army National Guard from February 1987 to July 1987, from November 1990 to July 1991, from December 1995 to June 1996, and from February 2003 to February 2004. This appeal arises before the Board of Veterans' Appeals (Board) from a September 2008 rating decision in which the Department of Veteran Affairs (VA) St. Louis, Missouri, Regional Office (RO) denied entitlement to service connection for left hip sciatica. In February 2013, October 2015, July 2016, and May 2017, the Board remanded this appeal for further development. The Board notes that the issue of entitlement to service connection for a right ankle strain has been previously remanded by the Board and is still before the RO. Therefore, the Board does not have jurisdiction to adjudicate the claim at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the nature and etiology of the Veteran's left hip disability. In a May 2017 Board remand, the Board stated that it was unclear whether the Veteran currently has a left hip disorder. The Board noted that while the initial March 2013 VA examination report found that there was no neurologic abnormality of the left hip and only slight neurological abnormality of the right hip, the first addendum to this examination report suggested that the findings regarding the right and left hip may have been mistakenly reversed. The Board also observed that the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. The Board noted that the record indicates a September 2006 diagnosis of "sciatica left side," and that the Veteran filed a claim for service connection for a left hip disorder less than two years later, in May 2008. The Board stated that a medical opinion was necessary to determine whether the Veteran had a left hip disorder at any time during the appeal period beginning May 2008 and, if so, whether the disorder was related to his military service. In a June 2017 addendum opinion, a VA examiner determined that a nexus was not established. The examiner reported that the entrance examination dated November 1986 showed no evidence of a left hip condition. The examiner noted that left hip sciatica was diagnosed in March 1988 by private physician. The examiner went on to state that no service treatment records for the left hip are noted in the claims file. The examiner further reported that the Veteran has a current left hip diagnosis of degenerative osteoarthritis. The examiner stated that sciatica refers to pain that radiates along the path of the sciatic nerve, which branches from the lower back through the hips and buttocks and down each leg. Therefore, the examiner stated that the diagnosis of sciatica is not a left hip condition but a nerve condition of the sciatic nerve. The Board acknowledges that the Veteran has presented a theory of service connection based on aggravation beyond the natural progression of a pre-existing condition. While the June 2017 opinion noted that there was no report of a left hip condition in the November 1986 entrance examination, the opinion did not take into account that the Veteran had multiple entries to active duty due to the nature of his service. In particular, while the Board directives asked whether the left hip disorder pre-existed the Veteran's second period of active service, which began in November 1990, the June 2017 addendum only mentions the November 1986 entry. The opinion does not address whether the March 1988 diagnosis would show evidence that the disability pre-existed the Veteran's November 1990 active service. The Board also notes that the June 2017 addendum opinion seems to rely on the classification of sciatica as a left hip condition to determine the likelihood of service connection rather than if the Veteran has a left hip disability of any kind that would likely be connected to service. Though the examiner found current left hip degenerative osteoarthritis, the examiner did not determine whether this disability was related to service. Moreover, though the examiner explained that sciatica was a nerve condition, the examiner did not state whether the Veteran had the condition during the appeals period, and if so, whether it was related to his periods of active service. For these reasons, the Board finds this opinion to be inadequate for the purposes of adjudicating the claim. Therefore, a remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's file to an appropriate, and if possible, different VA examiner, for addendum opinion. The examiner should receive a copy of this remand and review the Veteran's file. The examiner should consider all medical records associated with the file. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Based on review of the record, the examiner should determine: a. Whether the Veteran has a current diagnosis of any left hip disability OR has had a diagnosis of any left hip disability at any point during the appeal period beginning May 2008, to include a discussion of the September 2006 diagnosis of sciatica and the June 2017 diagnosis of degenerative osteoarthritis. Significantly, the examiner should reconcile the June 2017 VA examination which resulted in a diagnosis of left hip degenerative osteoarthritis, the March 2013 VA examination that determined that the Veteran did not have a left hip disorder, and the September 2006 diagnosis of left hip sciatica. b. If a left hip disorder is currently diagnosed OR was present during the appeal period beginning May 2008, is there clear and unmistakable evidence that such pre-existed the Veteran's second period of active duty service (November 1990 to July 1991) OR third period of service (December 1995 to June 1996) OR fourth period of service (February 2003 to February 2004), to include a discussion of the Veteran's treatment for hip pain beginning in March 1988 and continuing throughout the 1990's and 2000's with Dr. W.G.B.? (i) If there is clear and unmistakable evidence that a left hip disorder pre-existed service, is there clear and unmistakable evidence that the pre-existing disorder(s) DID NOT undergo an increase in the underlying pathology during service? If there was an increase in severity of the Veteran's disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disorder(s). (ii) If there is no clear and unmistakable evidence that any left hip disorder pre-existed service, is it at least as likely as not (i.e., a 50 percent or greater probability) that ANY diagnosed left hip disorder was manifested in, caused by, or is otherwise etiologically related to the Veteran's periods of active duty service? Any opinions offered should be accompanied by a rationale. 2. Readjudicate the claim. If the issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ JENNIFER HWA 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).