Citation Nr: 1303512 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-23 690 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to an initial rating in excess of 10 percent for osteoarthritis of the right hip. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2009 rating decision in which the RO granted service connection for osteoarthritis of the right hip and assigned an initial 10 percent rating. In November 2009, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in May 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2010. Because the appeal involves disagreement with the initial rating assigned following the grant of service connection for osteoarthritis of the right hip, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In October 2011, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. The Veteran served as a U.S. Army vehicle mechanic with no overseas service. He sustained a left proximal femur fracture in service when as a pedestrian he was hit by an automobile. The Veteran has been granted service connection and a 20 percent rating for residuals of the left femur fracture and degenerative arthritis of the left hip. Following a September 2009 VA examination, in October 2009 the RO granted service connection and assigned an initial 10 percent rating for osteoarthritis of the right hip as secondary to the service-connected left hip disability. The Veteran contends that the right hip disability is more severe than is contemplated by the initial rating. In a November 2009 notice of disagreement and in hearing testimony, the Veteran contended that a September 2009 VA examination did not accurately reflect his active range of motion, degree of pain, and incapacity for work. Specifically, he reported that the recorded range of motion was obtained by manipulation by the examiner. He stated that he could not achieve that range of motion on his own. He further stated that his symptoms had become more severe since the examination. Considering the more than 3-year period since the last VA examination of the right hip (conducted in connection with the claim for service connection ), in light of the Veteran's claims of worsening, the Board finds that a more contemporaneous VA examination-with findings responsive to the applicable rating criteria and other considerations-is needed to evaluate the left hip disability. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). Hence, the RO should arrange for the Veteran to undergo VA examination, by an appropriate medical professional, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for higher rating (as this claim, emanating from an original claim for, and award of, service connection, will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655(a), (b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that the record before the examiner is complete, and that all due process requirements are met, the RO should obtain and associate with the claims file all outstanding, pertinent records. During his Board hearing, the Veteran stated that he continued to receive regular VA outpatient care. The most recent VA outpatient treatment records, from the Nashville VA Medical Center ((VAMC), are dated in July 2009; therefore, there are outstanding VA medical records which may be pertinent to the claim on appeal. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO should obtain from the Nashville VAMC all outstanding, pertinent records of evaluation and/or treatment for osteoarthritis of the right hip since July 2009, following the current procedures prescribed in 38 C.F.R. § 3.159(c) for requests for records from Federal facilities. The record also contains references to orthopedic care for the right hip by a private physician with indications of inconsistent results of imaging studies. Records of private primary care from May to July 2009 indicate that X-rays of the right hip were normal. However, a clinician noted that the Veteran had been referred to a private orthopedic surgeon who told the Veteran that he had bone spurs in the right hip. Records of care by this specialist and of any ongoing private primary care since 2009 have not been obtained but may be relevant to the level of disability during the pendency of the appeal. Accordingly, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran provide, or provide appropriate authorization(s) for the RO to obtain, all outstanding, pertinent records from the orthopedic surgeon and primary care provider primary care provider referenced above. The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim for higher rating should include consideration of whether "staged rating" of the disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson(cited above). The RO should consider the claim in light of all pertinent evidence added to the record since the RO's last adjudication. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Nashville VAMC all outstanding pertinent records of evaluation and/or treatment of the Veteran since July 2009. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records and/or responses received must be associated with the claims file. 2. Provide to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran provide, or provide appropriate authorization(s) for the RO to obtain, all outstanding, pertinent records from the private orthopedic surgeon and primary care provider who have treated him. The RO's letter should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, schedule the Veteran for a VA orthopedic examination by an appropriate medical professional, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies (to include imaging studies to resolve the inconsistencies regarding the presence of degenerative disease and bone spurs) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the right hip (expressed in degrees). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right hip. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right hip due to pain and/or any of the other symptoms noted above during flare ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After accomplishing all requested action, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence (to particularly include evidence added to the record since the RO's last adjudication of the claim), and legal authority (to include consideration of whether staged rating, pursuant to Fenderson (cited above) is appropriate. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).