Citation Nr: 1009503 Decision Date: 03/12/10 Archive Date: 03/17/10 DOCKET NO. 05-23 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for a left hip injury with traumatic arthritis. 2. Entitlement to an evaluation in excess of 20 percent for lumbar muscle strain with history of left leg sciatica. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from December 1985 to February 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of December 2004 and February 2006 by the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). The Veteran requested hearings before a decision review officer (DRO) in connection with the current claims. These hearings were scheduled and subsequently held in November 2005 and July 2006. The Veteran testified at those times and the hearing transcripts are of record. The Veteran also requested a video-conference hearing. The hearing was scheduled for August 2007, but in a report of contact dated that same month, the Veteran withdrew his request for a video-conference hearing. The Veteran's claims were previously before the Board in October 2008 and remanded at that time for additional evidentiary development, to include obtaining current VA Compensation and Pension (C&P) examinations. Regrettably, the requested development was not completed. Therefore, another remand is required. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the Board's remand order). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Another remand is required in this case as the RO failed to comply with the Board's October 2008 remand order. See Stegall, supra. Specifically, the RO was instructed: * The veteran should be afforded an appropriate VA examination to determine the nature, extent, and severity of his lumbar strain with history of left leg sciatica disability and injury to the left hip with traumatic arthritis. The claims folder should be made available to and reviewed by the examiner. All indicated tests, including range of motion studies, should be performed. The examiner should express the findings of the range of motion studies in degrees and in relation to normal range of motion, and should fully describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the affected joint. The examiner must also identify any neurological impairment, to specifically include stating whether the veteran has bowel or bladder problems. The examiner must also state whether the veteran has pain, radiculopathy, or numbness in his lower extremities. The examiner should set forth a complete rationale for all conclusions in a legible report. To date, there is no indication of record that the Veteran has been afforded the requested VA examination. Accordingly, another remand is required and the Veteran should be afforded the requested examination. In light of the Board's determination to remand the Veteran's claims of entitlement to an evaluation in excess of 10 percent for a left hip injury with traumatic arthritis and entitlement to an evaluation in excess of 20 percent for lumbar muscle strain with history of left leg sciatica, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) must also be remanded as these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Additionally, the Veteran receives medical care through VA. VA is required to make reasonable efforts to help the Veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2009); Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, the RO should request all VA medical records pertaining to the Veteran that are dated from April 1, 2008 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to obtain all pertinent VA medical treatment records pertaining to the Veteran that are dated from April 1, 2008 to the present. 2. After the above development is completed, the Veteran should be afforded an appropriate VA examination to determine the nature, extent, and severity of his service-connected lumbar strain with history of left leg sciatica disability and his service-connected left hip injury with traumatic arthritis. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to include a discussion about the ranges of motion of the lumbar spine and left hip. The examiner should also state whether the lumbar spine and left hip disabilities are manifested by weakened movement, excess fatigability, incoordination or pain, and if so, whether there is an additional loss of range of motion as a result of these symptoms. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. The examiner must also specify whether the Veteran has any objective neurologic abnormalities associated with the lumbar spine disability, including, but not limited to the bladder, bowel, or the lower extremities. The examiner must provide a complete rationale for any stated opinion. 3. Thereafter, the RO should readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The Veteran 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. 2009). _________________________________________________ MICHAEL MARTIN Acting 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) (2009).