Citation Nr: 1127472 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 98-17 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased disability evaluation for right hip pain, secondary to service-connected ankylosing spondylitis, currently evaluated as 10 percent disabling. 2. Entitlement to an increased disability evaluation for left hip pain, secondary to service-connected ankylosing spondylitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from September 1993 to April 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This case was previously before the Board in April 2000 and April 2004, at which time the claim was remanded for further development. In a December 2010 statement, the appellant stated that he wished to file additional claims for entitlement to service connection. The issues of entitlement to service connection for: (1) a back disability, to include as secondary to his service-connected disabilities; (2) a neck disability, to include as secondary to his disabilities; (3) a left ankle disability; and (4) a left knee disability; and (5) whether and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are 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 The appellant contends that he is entitled to evaluations greater than the currently assigned 10 percent ratings for right and left hip pain. Unfortunately, the Board finds that the record is inadequate to determine the current status of the appellant's service-connected hip disabilities. Specifically, a June 2008 VA treatment record indicates that the appellant's hip disabilities may have worsened and, since his last VA examination in December 2005, which was conducted more than five years ago. The June 2008 VA treatment record reflects that the appellant complained of worsening hip pain. However, the appellant's hip disabilities have not been evaluated through range of motion testing since the December 2005 VA examination. As the June 2008 VA treatment record indicates the appellant's service-connected hip disabilities may have worsened since the most recent VA examination of these disorders was conducted more than five years ago, the Board finds that the December 2005 VA examination is not sufficiently contemporaneous for purposes of evaluating the current nature and severity of his service-connected hip disabilities. The appellant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Further, where the record does not adequately reveal the current state of a claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairmrent of the disability since the previous examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). Accordingly, the Board finds that the claim must be remanded for a new VA examination for the purpose of determining the current level of severity of the appellant's service-connected hip disabilities.\ The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claims, of failing to so report. See 38 C.F.R. § 3.655 (2010). Additionally, the most recent VA treatment record in the claims folder is dated in April 2009. Consequently, on remand, an attempt should be made to procure, and to associate with the claims file, records of any pertinent treatment that the Veteran may have received since April 2009. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the appellant's VA treatment records from April 2009 to present. If no records are available, the claims folder must indicate this fact. 2. After any records obtained have been associated with the claims file, schedule the appellant for a VA orthopedic examination to determine the current level of severity of his service-connected right and left hip disorders. * All indicated studies, including X-rays, should be performed. * The examiner should provide pertinent range of motion findings. * Tests of joint movement against varying resistance should be performed by the examiner. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. * The examiner should also express an opinion concerning whether there are additional limits on functional ability on repeated use or due to pain, including during flare-ups (if the appellant describes flare-ups), and, to the extent possible, provide an assessment of the additional functional impairment in terms of the degree of additional range of motion lost. * The rationale for all opinions expressed should be explained. 3. Thereafter, readjudicate the issues on appeal of entitlement to an increased rating for a right hip injury, currently evaluated as 10 percent disabling, and entitlement to an increased rating for a left hip injury, currently evaluated as 10 percent disabling. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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. 2010). _________________________________________________ L. M. BARNARD 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) (2010).