Citation Nr: 1308136 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 06-17 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for left hip degenerative joint disease (DJD) prior to August 1, 2007. 2. Entitlement to an increased disability rating in excess of 30 percent for left hip degenerative joint disease, status-post left hip arthroplasty, from October 1, 2008 to the present. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to July 1997. This appeal to the Board of Veterans' Appeals (Board) is from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. By that rating action, the RO denied the Veteran's March 2005 claim for an increase rating greater than 10 percent for his service-connected left hip DJD. Jurisdiction over the Veteran's claim currently resides with the Cleveland, Ohio RO. By a May 2008 rating decision, the RO granted a temporary evaluation of 100 percent from August 1, 2007 to September 30, 2008, based upon the Veteran's total left hip replacement/arthroplasty on August 1, 2007. The RO also increased the rating for the Veteran's left hip DJD, status post left hip arthroplasty, from 10 to 30 percent, effective October 1, 2008. He has since continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). 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 A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). This matter was previously before the Board in September 2012. At that time, the Board, in pertinent part, Remanded the matter to obtain outstanding VA treatment records. Reference was made to a November 2010 rating decision that had cited to VA treatment records dated from April 2002 to May 2010. As the claims file only included records dated through January 2008, the AMC was directed to request records from the Cincinnati VA Medical Center (VAMC) from January 2008 to the present. Such development was not completed. Rather, a review of the record shows that the AMC only asked for records from January 2012 to October 2012. It is true that the records generated in that request included a January 2008 physical therapy note showing that the Veteran had been discharged from the physical therapy program as well as a note in 2010 indicating that the Veteran had failed to report for a scheduled appointment. This suggests that all of the Veteran's available treatment records may have been obtained. The Board does not engage in the business of prognostication, however. Thus, based on the limited records search that was conducted, the Board finds that there is no option but to Remand again to insure that all of the Veteran's available treatment records have been requested and obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records from the Cincinnati VAMC, or any other identified VA facility, dated from January 2008 to the present. Any negative development should be included in the claims file. 2. Review the record to ensure that no additional development is deemed warranted, to include conducting a new VA examination if there is evidence of a worsening of the hip disability since the December 2012 VA examination. 3. Then readjudicate the claim in light of any additional evidence. If the claim is not granted to the Veteran's satisfaction, he and his representative should be sent a supplemental statement of the case. He should be given sufficient time to respond to it before returning the file to the Board for further appellate consideration. 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). _________________________________________________ MICHAEL A. HERMAN 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).