Citation Nr: 1301134 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-07 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for arthritis, right leg. 2. Entitlement to an increased rating greater than 10 percent for status post right femur fracture, with residual right knee pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from August 2001 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes the Veteran requested a hearing in his March 2009 substantive appeal, but the Veteran failed to appear for his hearing despite proper notice being sent to his last known address. The Veteran has not indicated good cause for missing his hearing nor has he requested the hearing be rescheduled. Accordingly, the Board deems the Veteran's hearing request withdrawn. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. 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 Initially, the Board notes that the above October 2007 rating decision included the issues of entitlement to service connection for arthritis, right leg, and entitlement to an increased rating greater than 10 percent for status post fracture and ORIF, right femur, with residual knee pain due to hamstring tightness, both of which claims were denied. The Veteran, in a May 2008 notice of disagreement, explicitly expressed a desire to appeal both issues. The Veteran was afforded a VA examination for his right lower extremity in June 2008. At that time, the examiner opined that the Veteran's right knee and right hip pain were secondary to his right femur fracture. The examiner stated that he would not comment on the Veteran's claimed arthritis until he had received the results of ordered x-rays. Following the receipt of those x-rays, the examiner diagnosed, in relevant part, right knee degenerative joint disease and right hip bursitis. The examiner did not, however, offer an opinion specifically as to the etiology of the Veteran's right knee arthritis at that time. In a subsequent January 2009 rating decision, the Newark, New Jersey RO continued the 10 percent rating for status post fracture right femur, with residual right knee pain. The rating decision did not include the separate issue of entitlement to service connection for arthritis, right leg, nor did the reasons for decision include any discussion as to right leg arthritis. The rating decision codesheet, however, indicated that the Veteran's current 10 percent rating for status post fracture right femur, with residual right knee pain, now also included right knee degenerative joint disease. This 10 percent rating, which included the right knee arthritis, was awarded pursuant to diagnostic code (DC) 5255-5024, or as analogous to impairment of the femur (DC 5255) and tenosynovitis (DC 5024). The rating decision codesheet further indicated that arthritis of the right leg associated with status post fracture right femur, with residual right knee pain and degenerative joint disease was not subject to service connection pursuant to DC 5003 for degenerative arthritis. A contemporaneous January 2009 statement of the case (SOC) also failed to explicitly discuss or otherwise address the Veteran's arthritis of the right leg, including the right knee. In light of the confusing and seemingly contradictory treatment of the Veteran's diagnosed right knee arthritis in the January 2009 rating decision codesheet and the lack of any discussion as to the right knee or leg arthritis in the January 2009 rating decision or SOC, the Board is unable to determine the present status of the claim for entitlement to service connection for arthritis, right leg. Accordingly, the claim of entitlement to service connection for arthritis, right leg, must be remanded to allow the RO/AMC to provide the Veteran with an SOC on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archibold v. Brown, 9 Vet. App. 124, 130 (1996). In addition, the Board notes that the claim for an increased rating greater than 10 percent for status post right femur fracture, with residual right knee pain is inextricably intertwined with the claim being remanded herein, as discussed above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Veteran's claim of entitlement to service connection for arthritis, right leg, must be fully adjudicated by the RO/AMC before the Board can render a final decision regarding his claim for an increased rating greater than 10 percent for status post right femur fracture, with residual right knee pain. Finally, the Board notes that additional VA treatment records involving the right lower extremity have been added to the Veteran's Virtual VA file, but have not been considered by the RO with respect to the above claims. Moreover, no waiver of initial RO consideration is currently of record, however, there is no prejudice as the RO will have an opportunity to consider these records on remand. Since the Veteran receives medical care through VA facilities, also obtain any additional VA medical records on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Accordingly, the case is REMANDED for the following action: 1. Issue an SOC addressing the issue of entitlement to service connection for arthritis, right leg. The Veteran should be provided the opportunity to perfect a timely Substantive Appeal (VA Form 9) with respect to that issue. The RO/AMC is free to undertake any additional development deemed necessary with respect to that issue. 2. Obtain any VA medical records pertaining to the Veteran that are not already associated with his claims folder or Virtual VA. 3. Once the Veteran has either perfected an appeal on the above issue, or the period in which to do so has expired, readjudicate the claim of entitlement to an increased rating greater than 10 percent for status post right femur fracture, with residual right knee pain, after undertaking any additional development deemed warranted. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ S. S. TOTH 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).