Citation Nr: 1300045 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 10-42 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased evaluation in excess of 10 percent for status-post open reduction and internal fixation, left hip. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1995, to October 2001. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (the RO). By that rating decision, the RO increased the Veteran's evaluation to 10 percent disabling for the service-connected status-post open reduction and internal fixation, left hip. The Veteran appealed that decision and this issue is currently before the Board. In May 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to 1) obtain outstanding VA treatment records and private treatment records and 2) obtain a VA examination. First, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159(c) (2012). The duty to assist includes obtaining records in the custody of a Federal department or agency, including VA medical records and relevant Social Security Administration (SSA) records, and making reasonable efforts to obtain private medical records. 38 C.F.R. § 3.159(c)(1), (2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). Here, the Veteran indicated at his May 2012 Board hearing that he had recently started going to the VA Medical Center for treatment. Particularly, the Veteran stated that he visits the Blue Ridge Clinic in Charlotte, North Carolina. Attempts should be made to obtain current VA records. The Veteran also indicated at the May 2012 Board hearing that he saw a private physician, Dr. K. A., for his hip condition. He also stated that this physician had referred him out to see an orthopedic specialist. There is no indication that the RO has attempted to obtain these records. Accordingly, remand is required to obtain VA medical records, and to attempt to obtain private medical records. Second, remand is required to obtain a current VA examination regarding the Veteran's left hip disability. The most recent VA examination was conducted in November 2009. In the examination report, the examiner noted that the Veteran has continued to complain of left hip pain and stiffness, with mild flare-ups that last one to two days at a time. The examiner conducted objective testing and noted that there was no ankylosis, locking episodes, instability, or arthritis. Range of motion testing revealed flexion of 115 degrees, extension of 30 degrees, abduction of 45 degrees, adduction of 25 degrees, external rotation of 55 degrees, and internal rotation of 25 degrees. After three repetitions, pain was noted, but there was no further limitation of motion. Testing confirmed the presence of painful motion. At the May 2012 Board hearing, the Veteran testified that he was continuing to experience symptoms of pain and stiffness. However, he also stated that he had been experiencing locking episodes, in which the Veteran explained that he literally cannot walk. The Veteran stated that these episodes make it difficult to navigate the stairs in his home without stopping and that it has affected his quality of life and ability to participate in activities with his children. VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also 38 C.F.R. § 3.326(a) (2011). The most recent spine examination was in November 2009, over three years ago. Although the November 2009 VA examination is adequate to support the assignment of the increased evaluation of 10 percent at that time, the worsening of the Veteran's condition based upon the Veteran's May 2012 Board hearing statement, in which he complained of an additional symptom of locking episodes, must be addressed. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5252. Accordingly, the RO must provide the Veteran with a new examination. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any medical records that pertain to his left hip disability. The AMC must specifically request the Veteran provide information regarding Dr. K. A. and the orthopedic specialist to whom he was referred. Subsequently, and after securing the proper authorizations where necessary, the AMC must make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file by the AMC. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; and (c) describe any further action to be taken by the AMC with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 3. After any newly obtained records are associated with the claims file, schedule the Veteran for an examination by a qualified medical provider to determine the current severity of the impairment resulting from his service-connected left hip disability. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). _________________________________________________ WAYNE M. BRAEUER 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) (2012).