Citation Nr: 1109783 Decision Date: 03/11/11 Archive Date: 03/24/11 DOCKET NO. 03-03 044A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 40 percent for residuals of a gunshot wound involving Muscle Groups XIV and XV, right thigh, with damage to right femur and degenerative joint disease of the right hip. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and wife ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 40 percent rating for residuals of a gunshot wound (GSW) of the right thigh with damage to the right femur and involvement of Muscle Groups XIV and XV. In January 2001, the Veteran submitted a notice of disagreement. The Board notes that the Veteran did not file a timely Substantive Appeal. However, inasmuch as the RO has taken actions to indicate to the Veteran that the present issue is on appeal, and it took no steps to close the appeal, the requirement that there be a timely Substantive Appeal is deemed waived. See Percy v. Shinseki, 23 Vet. App. 37 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003) (per curiam order). In May 2005, the Veteran presented sworn testimony during a Travel Board hearing in St. Petersburg, Florida, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In April 2009, the Board remanded the Veteran's claim of entitlement to an increased rating for his right thigh GSW to the Appeals Management Center (AMC) for further evidentiary development, including obtaining any outstanding treatment records and providing the Veteran with a new VA examination. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC attempted to identify any outstanding treatment records in a May 2009 letter to the Veteran. Additionally, the Veteran was afforded a VA examination in April 2010. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to an increased rating for residuals of a GSW involving Muscle Groups XIV and XV, right thigh, with damage to right femur and degenerative joint disease of the right hip. In November 2010, the Veteran submitted a letter from the Social Security Administration (SSA) indicating that he had been awarded SSA disability benefits as of September 2008. However, the claims file is negative for any records from SSA. Under the duty to assist, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, to include SSA. See 38 C.F.R. § 3.159(c)(2) (2010). When VA has actual notice of the existence of records held by SSA that appear relevant to the claim before VA, VA has a duty to assist by requesting those records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Thus, the AMC should attempt to obtain all relevant SSA records. Further, the Board finds the April 2010 VA examination and November 2010 Veterans Health Administration (VHA) opinion are not adequate to decide the claim. The medical evidence of record, including these opinions, does not clarify whether the Veteran's functional limitations from his service-connected degenerative joint disease of the right hip are separate from the functional limitations of his service-connected GSW disability, thereby permitting separate disability ratings. As such, the April 2010 VA and November 2010 VHA examiners' opinions are not adequate to determine the disability rating for the Veteran's service-connected residuals of a GSW involving Muscle Groups XIV and XV, right thigh, with damage to right femur and degenerative joint disease of the right hip. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. In light of the deficiencies in the April 2010 VA examination and November 2010 VHA opinion, the Veteran's claim of entitlement to an evaluation in excess of 40 percent for residuals of a GSW involving Muscle Groups XIV and XV, right thigh, with damage to right femur and degenerative joint disease of the right hip, must be remanded for a new VA examination and nexus opinion. Additionally, as the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Copies of VA treatment records from the West Palm Beach VA Medical Center, covering the period from April 2007, to the present, should be obtained and added to the claims folder. 2. Obtain and associate with the claims file all SSA records regarding the Veteran's disability claim and any medical records relied upon to make its decision. If, after making reasonable efforts, the AMC cannot obtain these records, it must specifically document what attempts were made to obtain the records, and indicate in writing that further attempts to locate or obtain any such government records would be futile. The AMC must then: (a) notify the Veteran of the records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After completion of the above, schedule the Veteran for a VA examination with an appropriate examiner in order to determine the current severity of his service-connected residuals of a GSW involving Muscle Groups XIV and XV, right thigh, with damage to right femur and degenerative joint disease of the right hip. The claims folder must be made available to the examiner for review of pertinent documents therein in connection with the examination. The examination report must reflect that such a review was conducted. All indicated studies should be completed. The examiner must identify the functional manifestations of the residuals of the GSW to the right thigh, involving Muscle Groups XIV and XV, with damage to the right femur. The examiner must then separately identify the functional manifestations of the right hip degenerative joint disease. If the symptoms overlap or are identical, the examiner must so state. The examiner should also comment on whether the Veteran's service-connected disabilities result in his being unable to secure or follow a substantially gainful occupation. 4. After completing the above actions and any other notification or development deemed necessary, the Veteran's claim of entitlement to an increased rating for residuals of a GSW involving Muscle Groups XIV and XV, right thigh, with damage to right femur and degenerative joint disease of the right hip should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2010). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2010). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2010).