Citation Nr: 0811527 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-36 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased initial disability rating for residuals of a right femur fracture, with knee fibrosis, ankylosis, and right leg shortening, currently evaluated as 30 percent disabling. 2. Entitlement to an increased disability rating for degenerative changes of the lumbar spine, currently evaluated as 40 percent disabling. 3. Entitlement to an effective date earlier than September 8, 2003, for a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from May 1976 to April 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in March 1999 and January 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The March 1999 rating decision granted service connection for degenerative changes of the lumbar spine and assigned an initial noncompensable rating, and also denied the veteran's claim of entitlement to a disability evaluation in excess of 30 percent for his residuals of a right femur fracture. The RO has since increased the initial rating for low back disability to 40 percent, effective August 7, 1998. The veteran has continued his appeal for higher ratings. See AB v. Brown, 6 Vet. App. 35 (1993). The January 2005 rating decision granted the veteran's claim of entitlement to a TDIU, effective from September 8, 2003. On appeal, the veteran seeks entitlement to an earlier effective date. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks an effective date earlier than September 8, 2003, for a total disability rating based on individual unemployability (TDIU). Specifically, he seeks an effective date during the one-year prior to the September 8, 2003, date of claim for a TDIU, i.e., the period between September 8, 2002, and September 7, 2003. (See Notice of Disagreement received in April 2005). In a medical release received in October 2003, the veteran identified (but did not provide) records of VA treatment in February 2003 and June 2003 that he indicated would be relevant to his claim for a TDIU. These records have not been sought or obtained by the RO, and may be relevant as to whether an effective date between September 8, 2002, and September 7, 2003, is warranted for a TDIU. Additionally, because not all relevant records of VA treatment have been obtained, the Board will defer adjudication of the claims for higher ratings for a right leg disability and a low back disability until such records have been associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Also, the veteran last underwent a VA compensation examination in November 2003, over four and one-half years ago. Records of treatment received from the veteran's representative in April 2006 show that the veteran was treated at several private emergency room visits for right leg and low back pain during the period from January 2005 to February 2006. These records may reflect a worsening of his condition. A new VA examination would therefore be helpful in adjudicating the veteran's claims for higher ratings for his service-connected low back and right leg disabilities. See VAOPGCPREC 11-95 Accordingly, the case is REMANDED for the following action: 1. Request the veteran to identify the name and address of all providers of all private and VA medical treatment for his right leg and low back disabilities for the period from August 1998 to the present. After any required releases for medical information are requested and obtained from the veteran, an attempt should be made to obtain any records so identified that have not been previously obtained. The records sought should include all records of VA treatment from September 8, 2002 through September 7, 2003, that have not been previously associated with the claims file, specifically to include records of VA treatment at the VA Medical Center in Fayetteville, Arkansas, in February 2003 and June 2003. (See medical release from veteran received in October 2003.) 2. Once all available medical records have been received, the RO should make arrangements with the appropriate VA medical facility for the veteran to be afforded a VA orthopedic examination for the purpose of determining the current severity of his service-connected low back and right leg disabilities. The RO should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. The examiner should perform full range of motion studies of the veteran's right leg and low back and comment on the functional limitations of the service-connected right leg disability (residuals of a right femur fracture with knee fibrosis, ankylosis, and right leg shortening) and degenerative changes of the lumbar spine caused by pain, flare-ups of pain, weakness, fatigability, and incoordination. Any additional functional limitation should be expressed as limitation of motion of the right hip or knee, as applicable, and of the low back. Specifically, after determining the range of motion of the affected part of the body, the examiner should opine whether it is at least as likely as not that there is any additional functional loss (i.e., additional loss of motion) due to pain or flare-ups of pain supported by adequate objective findings, or weakness on movement, excess fatigability, or incoordination. Additionally, the examiner should make a specific finding as to the extent of any right leg shortening. The examiner should further provide an opinion as to whether the veteran now has degenerative disc disease that is caused or aggravated by his service-connected degenerative changes of the lumbar spine or his service-connected right leg disability. If so, the examiner should describe 1) the nature and extent of any neurological impairment due to the degenerative disc disease, and 2) indicate whether the veteran experiences incapacitating episodes due to his low back disability, and the duration and frequency of any such episodes. 3. Readjudicate the issues on appeal. If any benefit sought remains denied, the veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).