Citation Nr: 0006126 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-27 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for residuals of bilateral hip replacements. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD S. J. Janec, Associate Counsel INTRODUCTION The veteran had active military service from August 1982 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) from a June 1997 rating decision of the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a bilateral hip disorder. The veteran perfected an appeal on this issue to the Board. In September 1998, the Board remanded the case to the RO for additional development. Regrettably, another remand is necessary. REMAND It appears that this case has been returned to the Board for decision despite the fact that the evidentiary development requested in the September 1998 remand has not been fully accomplished. The United States Court of Appeals for Veterans Claims has definitively held that the Board must remand any case in which there has been a failure to comply with directions in an earlier Board remand. Stegall v. West, 11 Vet.App. 268 (1998). The RO clearly made an effort to fulfill the development requested by the Board in the September 1998 remand. The file was returned to a medical professional who was asked to provide an opinion as to whether there was any ascertainable degree of aggravation of the veteran's bilateral hip disability (considering each hip separately) by his service- connected right ankle disability. In a response provided in January 1999, a physician stated that she had read the appeal, and remarked that she believed the previous physician's statement "very adequately answer[ed] these three questions." The original medical statement provided in this case did, indeed, answer three questions very adequately. Those questions were: (1) Is the bilateral hip disease secondary to a disease process, specifically degenerative joint disease that began in service? (2) Is the bilateral hip disease secondary to the service-connected ankle condition/injury? and (3) Is there a better explanation for the veteran's hip disease? However, as noted above, the case was returned to the RO for a response to a fourth question that was posed by the Board, i.e., is there any ascertainable degree of aggravation of the veteran's bilateral hip disability (considering each hip separately) by his service-connected right ankle disability? Unfortunately, our appellate review has been frustrated, because the response provided in January 1999 is insufficient in that it did not address the necessary question. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should obtain copies of any recent records of VA hospitalization or treatment that have not been associated with the veteran's claims file. 2. The veteran's file should be referred to an appropriate medical expert. After a complete review of the record, including this Remand, the physician should provide a written response, to the extent feasible, to the following question: Is there any ascertainable degree of aggravation of the veteran's bilateral hip disability (or of either hip, separately) by his service-connected right ankle disability? If the answer to that question is in the affirmative, the opinion should also express, to the extent feasible, the degree of hip disability which existed prior to the aggravation by the right ankle disability, and the degree of hip disability which subsequently existed as a result of any aggravation. 3. When the above development has been completed, and all evidence obtained has been associated with the file, the claim for service connection for a bilateral hip disorder should be readjudicated by the RO. If the decision remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further consideration if appropriate. The veteran need take no action until he is informed. However, the veteran is advised that he has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ANDREW J. MULLEN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a final 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 final decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (1999).