Citation Nr: 1311564 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-47 233A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for left hip internal derangement. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from April 2008 to July 2008 and from February 2009 to February 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO), wherein the RO awarded service connection for left hip internal derangement, assigning a noncompensable disability rating effective February 11, 2010. Jurisdiction over the case currently remains with the Milwaukee, Wisconsin RO. In an October 2010 rating decision, the RO awarded a 10 percent disability rating for left hip internal derangement, effective February 11, 2010. In his December 2010 substantive appeal, via a VA Form 9, the Veteran was requested a personal hearing at the RO before a Veterans Law Judge. In the May 2012 Informal Hearing Presentation, the Veteran's representative indicated that he desired for the representative to prepare an Informal Hearing Presentation on his behalf instead of the previously requested hearing. As the hearing had not yet been scheduled, the request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A supplemental statement of the case (SSOC) has not been issued addressing this additional 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 Although the Board regrets any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issue of entitlement to an initial disability rating in excess of 10 percent for left hip internal derangement must be remanded for further development. VA examination As the Veteran was last provided a VA examination for his left hip internal derangement in February 2010, approximately three years ago, and the statements submitted by his representative on his behalf indicate a possible worsening of symptoms, the Board finds that a current VA examination is necessary to adequately evaluate the claim. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPCGPREC 11-95; see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). VA medical records As the record reflects the Veteran had received continuing treatment at VA and the last VA medical records associated with the file are from November 2012, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Issuance of an SSOC In this case, an SSOC was last issued in February 2012. Thereafter, a large amount of VA medical records were added to the Virtual VA paperless claims file. An SSOC must be furnished to an appellant and his/her representative when additional pertinent evidence is received after a previous SOC and/or SSOC has been issued. 38 C.F.R. § 19.31 (2012). In this case, no such SSOC was issued after the additional VA medical records were added to the Virtual VA paperless claims file. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant as they contain records of treatment for the left hip, and since an SSOC pertaining to that evidence was not issued, this evidence must be remanded back to the RO for review. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304 (2012). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain and associate with the claims file any pertinent medical records adequately identified by the Veteran, to include all VA medical records available. All records which are not duplicates of those already in the claims file should be associated with the claims file. The AMC/RO should document whether or not these documents were available. 2. The AMC/RO should schedule the Veteran for a VA examination by an appropriate specialist, to determine the current nature and etiology of his left hip internal derangement. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The evaluation of the Veteran's left hip should consist of all necessary testing, including any necessary radiology reports, to adequately assess the severity of the current disability. The examiner is asked to comment on the degree of severity of the Veteran's left hip internal derangement and its affect on his employment and activities of daily living. A complete explanation should be provided for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims file. 3. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all instructions. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ KELLI A. KORDICH 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).