Citation Nr: 1124306 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 10-39 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether the reduction from 20 percent to 10 percent for left hip lateral abnormality with resultant traumatic arthritis was proper. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from August 1995 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board notes that the RO issued a statement of the case in August 2010 with regard to the Veteran's claims for whether the reduction from 20 percent to 0 percent for right shoulder impingement with surgical scar was proper and for entitlement to a disability rating in excess of 10 percent for left Achilles tendonitis and left foot plantar fasciitis. However, the Veteran specifically excluded these two issues when he filed a VA Form 9 in September 2010 in order to perfect the current appeal. As such, these two issues are not before the Board. See 38 C.F.R. §§ 20.200, 20.302 (2010). For reasons explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim. The Board notes that the Veteran's most recent VA joints examination which specifically included an examination of his left hip took place in June 2009, approximately two years ago. On that occasion, the Veteran complained of chronic left hip pain with flare-ups several times per week, usually after prolonged sitting or driving. He reported that pain medication helped some but did not completely relieve the pain. Examination revealed tenderness on palpation of the left hip, and range of motion of the left hip measured 90 degrees of flexion (with pain beginning at 80 degrees), 30 degrees of extension (with pain beginning at 20 degrees), 15 degrees of adduction (with pain beginning at 5 degrees), 30 degrees of abduction (with pain beginning at 20 degrees), 40 degrees of external rotation (with pain beginning at 30 degrees), and 20 degrees of internal rotation (with pain beginning at 10 degrees). Significantly, it was noted that DeLuca requirements were not performed due to the Veteran's pain and stiffness. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2010); see also 38 C.F.R. §§ 4.45, 4.59 (2010). Since the time of his June 2009 examination, the Veteran has alleged that his left hip disability has worsened. In his December 2009 notice of disagreement, he alleged that his medication was recently increased to help manage his hip pain. On his September 2010 VA Form 9, the Veteran noted in reference to his left hip that he was in constant pain on a daily basis and that his range of motion was limited. He also alleged that his VA examination doctor did not use a measuring device to measure the degrees of range of motion of his left hip, and argued that the doctor instead "eyeballed" the measurements and even manipulated the Veteran's leg while he was in pain to determine larger range of motion. As the current severity and extent of the Veteran's service-connected left hip disability is unclear, the Board finds that a new VA joints examination is necessary in order to fully and fairly evaluate whether the reduction in the rating for such disability was proper. Relevant ongoing VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain relevant ongoing VA treatment records dating since April 2010 from the Upstate New York VA Health Care System. 2. Schedule the Veteran for a VA joints examination to determine the current severity of his service-connected left hip lateral abnormality with resultant traumatic arthritis. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. A complete rationale should be provided for all opinions expressed. The examiner should describe all symptomatology related to the Veteran's service-connected left hip disability. All indicated tests should be performed and all findings should be reported in detail, including range of motion of the left hip (specifying at what degree in motion pain begins). The examiner should also describe any functional loss pertaining to the Veteran's service-connected left hip disability due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner should provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter that 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). _________________________________________________ K. A. BANFIELD 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).