Citation Nr: 1808179 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-16 568 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a right hip disability, to include as secondary to service-connected right and/or left ankle disability(ies). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1988 to May 2000. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2011 rating decision in which the RO, inter alia, continued deny previously denied claims for service connection for a right and left hip disabilities. In March 2012, the Veteran filed a notice of disagreement (NOD). In June 2012, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2012. In a January 2013 rating decision, the RO, via the Appeals Management Center (AMC) reopened the claim for service connection for a left hip disability and granted service connection for degenerative joint disease (DJD) with small acetabular labral tear, left hip; this action resolved the left hip disability claim. However, the AMC continued to deny right hip disability claim (as reflected in the January 2012 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. In September 2016, the Board reopened the claim for service connection for a right hip disability and remanded the de novo claim for service connection to the RO, via the AMC, for further action. After accomplishing further action, the AMC denied the reopened claim (as reflected by the December 2016 SSOC), and returned the matter to the Board. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager claims processing systems. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further AOJ action in this appeal is warranted, even though such will, regrettably, delay an appellate decision on this matter. The Veteran contends that he has a right hip disability; specifically, degenerative joint disease (DJD), that is medically-related to service or, alternatively, is secondary to his service-connected right and/or left ankle disability(ies). However, the record does not clearly resolve the question as to whether the Veteran has a current right hip disability, or the etiology of any such disability. The record reflects that December 2010t magnetic resonance imaging (MRI) testing revealed mild degeneration of the chondrolabral junction superiorly on the left hip joint and mild cartilage wear involving the hip joint spaces. Based on the results of this testing, a January 2011 treatment record notes a diagnosis of left hip minimal DJD with a left acetabular labral tear. Subsequently, as noted above, service connection for left hip disability was granted. No reference to the right hip was noted. A July 2012 statement from the Veteran's chiropractor referenced a diagnosis of bilateral DJD of the hips. However, the chiropractor noted that the Veteran "has been diagnosed with... DJD of the hips bilateral" and based this diagnosis on the December 2010 MRI results. Additionally, the Veteran submitted a May 2013 statement in which his private physician noted a diagnosis of DJD in the right hip which he, also, based on the December 2010 MRI results,. In the September 2016 Board remand, the Board requested a VA examination to clarify whether the Veteran has a current right hip disability and for the examiner to provide an opinion addressing the nature and etiology of any such diagnosed disability.. The examiner was instructed to conduct a complete review of the claims file and conduct any necessary tests and studies. Pursuant to the Board's remand, in October 2016, the Veteran underwent a VA examination. After an in-person examination, the examiner found that the Veteran did not have a current right hip diagnosis. The examiner referenced diagnostic testing from September 2011which he reported reflected normal alignment with no fracture or foreign body seen; however, no current tests and stusdies were accomplished in connection with the examination. Also, based on the examination and a review of the records, the examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. In providing the opinion, the VA examiner failed to address the statements of the Veteran's private medical professionals and the December 2010 imaging testing and results. The examination also failed to address causation and aggravation with respect to service connection on a secondary basis. In light of all rhe above-noted deficiencies, the Board finds that the further examination and medical opinion is needed to resolve the service connection claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a claimant has a right to compliance with prior remand directives). See also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that when VA provides a medical examination or obtains a medical, it must ensure that one is provided or obtained that is adequate for the . Without clear medical information resolving whether the fundamental criterion for service connection-medical evidence of current disability-is met, and, if so, the relationship, if any between any such current disability and service, the Board cannot resolve the claim. Hence, the AOJ should arrange for the Veteran to undergo VA right hip examination by an appropriate physician. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the reopened claim. See 38 C.F.R. § 3.655,(b) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA treatment records from Minneapolis VA Health Care System (HCS) since July 2016. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining claim on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103 (b) (2012); but see 38 U.S.C. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining service connection claim on appeal., Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from Minneapolis VA HCS all outstanding, pertinent records of evaluation and/or treatment of the Veteran since July 2016. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish appropriate authorization to obtain, all outstanding pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA right hip examination by an appropriate physician. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager}), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report must include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include x-rays) to confirm or rule out current right hip disability (to include DJD)should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran, and consideration of the entire record (to include all imaging testing results), the examiner should identify all current right hip diagnosis/es-to include DJD) currently present or validly present at any point pertinent to the current claim (even if now asymptomatic or resolved). If the examiner determines that the Veteran does have a current right hip disability, he or she should clearly so state, and explain why, reconciling such findings with the statements made by the Veteran's chiropractor, in July 2012 and private physician in May 2013. If a right hip disability (to include DJD established by x-ray) is diagnosed, for each such diagnosed disability, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater possibility) that the disability: (a) had its onset during service or is otherwise medically related to service; or, if not (b) was caused OR (b) is or has been aggravated (worsened beyond natural progression by the Veteran's service-connected right and/or left ankle disability(iea). If secondary service connection is addressed, the examiner must explicitly address both causation and aggravation. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from aggravation to include by identifying (to the extent possible), the baseline level of disability prior to the aggravation. In rendering the requested opinion, the examiner must consider and discuss all relevant medical and other objective evidence (to include the private medical records referenced above),, as well as all lay assertions (to include the Veteran's competent assertions as to the nature, onset and continuity of symptoms). Notably, the absence of documented evidence of diagnosis of or treatment for a specific disability in or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating the requested opinion(s). If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. If the Veteran fails to report to the scheduled examination, associate with the claims file (a) copy(ies) of any correspondence referencing the date and time of the examination-preferably, the notice(s) of examination-sent to him by the pertinent medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the reopened claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the de novo service connection claim, to include on a secondary basis, in light of all pertinent evidence (to include all that added the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).