JAMES A. W ASHINGTON v. R. James Nicholson

19 Vet. App. 362, 2005 U.S. Vet. App. LEXIS 669, 2005 WL 2877881
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 2, 2005
Docket03-1828
StatusPublished
Cited by239 cases

This text of 19 Vet. App. 362 (JAMES A. W ASHINGTON v. R. James Nicholson) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JAMES A. W ASHINGTON v. R. James Nicholson, 19 Vet. App. 362, 2005 U.S. Vet. App. LEXIS 669, 2005 WL 2877881 (Cal. 2005).

Opinions

MOORMAN, Judge, filed the opinion of the court. KASOLD, Judge, filed a dissenting opinion.

MOORMAN, Judge:

The appellant, James A. Washington, seeks review through counsel of an October 2, 2003, decision of the Board of Veterans’ Appeals (Board) that denied his claim for service connection for a bilateral hip disability. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons set forth below, the Court will vacate the Board’s October 2, 2003, decision and remand the matter for further adjudication consistent with this decision.

I. FACTS

Mr. Washington served on active duty in the U.S. Army from September 1966 to April 1986. Record (R.) at 16-17. In the course of adjudicating a separate claim for, inter alia, a back disability, most of Mr. Washington’s service medical records (SMRs) were sent to a VA regional office (RO) on January 18, 1990, but have since been lost. VA’s efforts to locate them have been unsuccessful. R. at 27, 125-26, 230, 247-48, 315. The few remaining SMRs, dated in 1984 and 1985, are unrelated to Mr. Washington’s bilateral hip disability; they reflect neither an in-service hip injury nor treatment of any such injury. R. at 22-25. In December 1994, Dr. Schwegel, a private radiologist, diagnosed Mr. Washington with “probable bi[364]*364lateral osteonecrosis of the hips, more pronounce[d] on the right than the left.” R. at 89; see also Dorland’s Illustrated Medical Dictionary 1200 (27th ed.1988) [hereinafter Dorland’s] (defining “osteone-crosis” generally as cell death of the bone). In January 1995, Dr. Miller, Mr. Washington’s private physician, noted that Mr. Washington had complained of hip pain for 26 years; and he ordered magnetic resonance imaging (MRI) of Mr. Washington’s hips. R. at 159. In February 1995, Dr. Miller diagnosed Mr. Washington with avascular necrosis of the right hip and “minimal” avascular necrosis of the left hip. R. at 100-01; see also Dorland’s 1101 (defining “avascular necrosis” as “morphological changes indicative of cell death and caused by ... deficient blood supply”).

In March 1995, Mr. Washington submitted a claim for service connection for a bilateral hip disability. See R. at 365. In a July 1995 decision, the RO denied that claim and advised him that an award of service connection required evidence linking his current hip disability to his active military service. R. at 111-12. Mr. Washington filed a Notice of Disagreement (NOD) in August 1995; and the RO subsequently issued a Statement of the Case (SOC). R. at 199-203. In July 1996, Mr. Washington filed a Substantive Appeal with the Board, and stated that while he was stationed in Korea, he had been treated for a hip. disability. R. at 211-12. Additionally, during a personal hearing at the RO in January 1997, Mr. Washington testified that in the summer of 1969, while he was stationed in Korea, he woke up one morning with his right foot internally rotated and pain in his right hip and thigh; and that he was subsequently placed on limited duty for approximately two months, during which time he underwent physical therapy for the pain. R. at 214-22. He further testified that he received treatment for hip pain during the remainder of his military service, although his few remaining SMRs do not reflect any such treatment. R. at 22-25, 214-22.

Following Mr. Washington’s testimony in January 1997, the RO issued a Supplemental Statement of the Case (SSOC) maintaining its denial of his claim for service connection for a bilateral hip disability. R. at 225-28. The RO also notified Mr. Washington in the SSOC that copies of his SMRs had been requested from the National Personnel Records Center (NPRC) in St. Louis, Missouri, but no copies could be located. R. at 227. The record reflects that the RO requested Mr. Washington’s records from NPRC in August 1995, November 1996, and August 2001. R. at 125-26, 230, 315. The NPRC repeatedly advised that all of Mr. Washington’s available SMRs were sent to the RO on January 18, 1990, and no additional records could be located. Id. In December 1998, the RO sent Mr. Washington a letter informing him that it sent “several” requests to the NPRC for his SMRs, but it had not received any additional records. R. at 247. The RO enclosed a military records specialist’s “administrative decision” that concluded that all necessary requests and actions had been taken to locate Mr. Washington’s records, but they had been unsuccessful. R. at 248. The decision noted that his records, received by the RO in 1990, were later “disassociated from [his claim] file at some unspecified time” and a search of the RO had failed to locate them. Id.

In July 1997, Dr. Tabor, a VA physician, examined Mr. Washington. R. at 240^13. Regarding Mr. Washington’s hip, Dr. Tabor stated:

The problem with the hip is that the blood supply to the hip is lost by some incident or situation and over the years, [365]*365the hip degenerates. This could have happened in the 1969 episode that [the] veteran complains [about] with abnormal position that he could not move his hip. There could be subluxation of that hip at that time and it would be appropriate at this time that the veteran would begin to have severe pain in the- right hip from the avascular necrosis. It is essential that his medical records from his service career be found and I would suggest that that be done in order to complete this examination.

R. at 241. In addition, Dr. Tabor explicitly ruled out the possibility that Mr. Washington’s hip disability was secondary to his back disability. Id. He also raised the possibility that Mr. Washington’s hip disability may have been caused by steroid treatment, but noted that Mr. Washington had no reported history of such treatment. Id.'

In May 2000, the Board found that Mr. Washington had not submitted evidence linking his current hip disability to service or to an established service-connected disability, and it denied his claim. R. at 260-68. On November 22, 2000, the Court granted a joint motion to vacate the May 2000 decision and remand the matter to the Board. R. at 270-79. Thereafter, the Board remanded to the RO Mr. Washington’s claim for application of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat.2096! R. 298-301.

In November 2001, the RO ordered another VA medical examination of Mr. Washington’s bilateral hip disability. R. at 319. The examiner, Dr. Mueller, reviewed Mr. Washington’s claim file and noted:

There is one brief note of an episode of limping during the service time in 1969, however, there is no way to verify this. X-ray studies and MRIs done in the early and mid-1990’s reveal avascular ■necrosis of the hips and degenerative disease of the lumbosacral spine. In my opinion, there is no evidence to corroborate that the incident of limping in 1969 was in any way related to the avascular necrosis of- the hips which surfaced in 1994. : .

' R. at 319. In addition, Dr. Mueller also ruled out the possibility that Mr. Washington’s bilateral hip disability was secondary to his back disability. R. at 319.

The matter was returned to the Board in June 2002, and again the Board denied Mr. Washington’s claim, after finding “no probative evidence of a disorder of either hip during [Mr.

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Bluebook (online)
19 Vet. App. 362, 2005 U.S. Vet. App. LEXIS 669, 2005 WL 2877881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-a-w-ashington-v-r-james-nicholson-cavc-2005.