Citation Nr: 1122545 Decision Date: 06/10/11 Archive Date: 06/20/11 DOCKET NO. 06-25 060A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a disability rating in excess of 10 percent for a stress fracture of the left upper femur with pain in the hip. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to December 1983, and had additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which increased the Veteran's rating for his service-connected stress fracture of the left upper femur with pain in the hip from noncompensable to 10 percent in response to his October 17, 2003 claim for a higher rating. In March 2011, the Veteran provided a waiver of RO consideration of the evidence submitted after the October 2009 supplemental statement of the case. 38 C.F.R. § 20.1304(c) (2010). In March 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the RO (Travel Board hearing). A copy of the hearing transcript is in the record. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left ankle sprain has been raised by the record-see, e.g., March 2011 Board hearing at pp. 4, 7-8, 12-but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Additional development is needed prior to further consideration of the Veteran's claim for entitlement to a disability rating in excess of 10 percent for a stress fracture of the left upper femur with pain in the hip. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2008); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995). The Board notes that the Veteran's most recent VA examination for his service-connected stress fracture of the left upper femur with pain in the hip was provided in February 2006. In light of the more than five years and two months since the Veteran's last VA examination, he should be scheduled for a new VA examination to ascertain the degree of disability currently associated therewith. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination); cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). The Veteran alleged at his March 2011 Board hearing that his left femur and hip symptoms warrant an increased rating. Id. at pp. 14, 25. Therefore, on remand, the AOJ should schedule the Veteran for an orthopedic/neurological examination, by an appropriate specialist, to determine the nature, extent and severity of his service-connected stress fracture of the left upper femur with pain in the hip. Additionally, the Board notes that the February 2006 VA compensation and pension (C&P) examiner determined that "a bone scan of the left hip is needed to clarify any changes not noted on regular x rays that may be remotely connected to the [service-connected] hip problem." In May 2006, the Veteran cited that determination and requested a bone scan of his left hip. Daves v. Nicholson, 21 Vet App 46 (2007) (when VA's duty to provide a medical examination is triggered, this duty includes the requirement that it provide reasonable tests and other examinations necessary to render a meaningful medical opinion); citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991) (holding that the duty to assist includes providing additional testing or examinations recommended by a VA examiner). The Board further notes that in November 2003, VA clinicians provided the Veteran with bone scans of his left hip and whole body, both of which showed normal results. Consequently, the C&P examiner should state whether he concurs with the February 2006 examiner's determination that a bone scan of the Veteran's left hip is needed. If the examiner finds that such testing is necessary, it should be performed, and the results included in the C&P examination report. If the examiner finds that such testing is unnecessary, he should explain why. The Veteran testified at his March 2011 Board hearing that he has pain radiating from his hip down his leg, behind his knees, and into his feet. Id. at pp. 22-23. In May 2004, the Veteran told a VA clinician that he had left hip pain radiating to his lower back. In September 2004, the Veteran told a VA clinician that he had left hip pain radiating to his left knee and across his pelvic girdle. In August 2005, the Veteran told a VA clinician that he had lower back pain (as distinct from hip pain) that radiated down his posterior left thigh to his knee. If there is evidence of any objective neurological abnormality associated with the Veteran's service-connected left femur and hip disability, such as radiculopathy affecting the lower extremities, the examiner should identify this abnormality (e.g., neuritis or neuralgia) and comment on its severity. Specifically, the examiner should discuss the severity of any associated radiculopathy which may be found and ascertain whether it more closely resembles a mild incomplete paralysis, a moderate incomplete paralysis, a moderately severe incomplete paralysis or a severe incomplete paralysis. The examiner should also describe any other neurological manifestations which may be present. On remand, the AOJ is asked to obtain all of the medical records showing treatment for the Veteran's service-connected stress fracture of the left upper femur with pain in the hip since January 2009, which are not already of record. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all health care providers that have treated or evaluated him for his service-connected stress fracture of the left upper femur with pain in the hip since January 2009, and attempt to obtain records from each health care provider that he identifies who might have available records, if not already in the claims file. If records are unavailable and future attempts to retrieve the records would be futile, notations to that effect should be made in the claims folder. 2. After completion of the above, schedule the Veteran for an orthopedic/neurological examination, by an appropriate specialist, to determine the nature, extent and severity of his service-connected stress fracture of the left upper femur with pain in the hip. The rationale for any opinions and all clinical findings should be given in detail. If it is not possible to provide an opinion without resulting to mere speculation, the examiner should state the reason(s) why. The claims file should be made available to, and be reviewed by, the examiner in connection with the examination, and the examiner's report should so indicate. The examiner should include the results of x-rays of the Veteran's left upper femur in the report. The examiner should determine the Veteran's range of motion, including extension, flexion, abduction, adduction, and rotation of the thigh, in degrees. The examiner is asked to identify and describe any current symptomatology, including any functional loss associated with the left upper femur disability due to more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, pain on pressure or manipulation, and muscle spasm. The examiner should specify any additional limitation of motion due to any of these factors, including during prolonged, repetitive use of the left upper femur, or when, for example, the Veteran's symptoms are most problematic ("flare-ups"). If there is no objective evidence of these symptoms, the examiner should so state. The examiner should determine whether the Veteran has ankylosis of the hip, and, if so, whether it is favorable, intermediate, or unfavorable, whether the Veteran has a hip flail joint. The examiner should determine whether the Veteran has a fracture of the shaft or anatomical neck of the femur with nonunion and, if so, whether it is characterized by loose motion. The examiner should determine whether the Veteran has a fracture of the surgical neck of the femur with false joint. The examiner should determine whether the Veteran has malunion of the femur, and, if so, whether the associated knee or hip disability is slight, moderate, or marked. The examiner should state whether he concurs with the February 2006 examiner's determination that a bone scan of the Veteran's left hip is needed. If the examiner finds that such testing is necessary, it should be performed, and the results included in the C&P examination report. If the examiner finds that such testing is unnecessary, he should explain why. If there is evidence of any objective neurological abnormality associated with the Veteran's service-connected left femur and hip disability, such as radiculopathy affecting the lower extremities, the examiner should identify this abnormality (e.g., neuritis or neuralgia) and comment on its severity. Specifically, the examiner should discuss the severity of any associated radiculopathy which may be found and ascertain whether it more closely resembles a mild incomplete paralysis, a moderate incomplete paralysis, a moderately severe incomplete paralysis or a severe incomplete paralysis. The examiner should also describe any other neurological manifestations which may be present. The examiner should determine the extent to which the Veteran's symptoms, including limitation of range of motion and any neurological abnormalities, are due to his injury in service, and the extent to which they are due to his non-service connected and/or post-service injuries. If the examiner is unable to determine whether any symptom(s) is attributable to the Veteran's service-connected disability, he should explain why. The examiner should also include a statement as to the effect of the Veteran's stress fracture of the left upper femur with pain in the hip on his occupational functioning and daily activities. 3. After completion of the above, the AOJ should readjudicate the claim for entitlement to a disability rating in excess of 10 percent for a stress fracture of the left upper femur with pain in the hip. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board for further review. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination without good cause may have adverse consequences on his claims. 38 C.F.R. § 3.655 (2010). The Veteran and his representative have 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. 2010). _________________________________________________ A. BRYANT 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) (2010).