Citation Nr: 1301147 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-13 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 20 percent for residuals of fracture of tibia and fibula with painful right hip, to include a separate rating for the right hip. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to June 1989. Further, the record reflects he had additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, continued the assigned 20 percent rating for service-connected right tibia and fibula fracture residuals. The RO also recognized right hip pain as being due to the service-connected disability, but found that the evidence did not warrant a separate rating for the hip disability. As such, the Board will determine whether a higher rating is warranted for the right tibia and fibula fracture residuals to include whether a separate rating is warranted for the right hip disability. The Veteran provided testimony at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in March 2011. A transcript of this hearing has been associated with the Veteran's VA claims folder. For the reasons detailed below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, the Board finds that further development is required in order to comply with the duty to assist. The record reflects that the Veteran underwent at least one surgery, and possibly more, in connection with his service-connected leg disability. The Veteran has contended, in part, that he is entitled to separate rating(s) for residual surgical scars. However, the VA medical examinations on file contain no findings regarding such scars which would allow the Board to determine whether separate rating(s) are warranted pursuant to the relevant criteria for evaluating scars found at 38 C.F.R. § 4.118. As such, a remand is required for a VA examination to address the full range of symptoms associated with the Veteran's service-connected right leg disability, to include any symptoms arising from surgical scars. The Board also notes that the Veteran indicated at his March 2011 Board hearing that he had received private medical treatment for his hip and leg, and that such records were not on file. See Transcript p. 12. Although he indicated that the private treatment records in question would not show anything different than what was noted by the VA medical examinations on file, as a remand is otherwise required in this case, the Board finds that these potentially relevant records, and any other outstanding treatment records, should be obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain the names and addresses of all medical care providers who have treated the Veteran for his right tibia and fibula fracture residuals since July 2008. Of particular importance are the private treatment records indicated by the Veteran at his March 2011 Board hearing. After securing any necessary release, the AOJ should obtain those records not on file. 2. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and severity of his service-connected right tibia and fibula fracture residuals. The claims folder (to include any relevant electronic records available in Virtual VA) should be made available to the examiner for review before the examination. The examiner must note in the examination report that the Veteran's claims file was reviewed. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. Such comments should include whether there is additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc., to include that of the right knee, ankle and hip. The examiner should also comment upon the nature of any residuals scars from the service-connected fracture residuals and the symptomatology thereof. 3. Thereafter, the AOJ should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AOJ should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AOJ should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, the AOJ should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the March 2009 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted 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). _________________________________________________ M. N. HYLAND 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) (2012).