Citation Nr: 1311748 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 12-25 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 50 percent for right hip osteoarthritis, status-post total hip replacement. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD David Traskey, Counsel INTRODUCTION The Veteran had active service from March 1990 to May 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of May 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran's service-connected right hip osteoarthritis, status-post total hip replacement is currently evaluated as 50 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5054, effective November 29, 2002. The hyphenated code is intended to show that the Veteran's right hip osteoarthritis is manifested by symptoms of traumatic arthritis (Diagnostic Code 5010) and hip replacement/prosthesis (Diagnostic Code 5054). According to the Veteran, his right hip disability is worse than currently rated. In this regard, the Veteran reported subjective symptoms of "markedly severe" residual weakness, pain, muscle injury, incoordination, and ankylosis. See August 2012 substantive appeal. The Veteran further stated that he occasionally used crutches. Accordingly, the Veteran requested either a 70 or 90 percent evaluation under Diagnostic Code 5054. Id. A review of the claims file shows that the Veteran was most recently afforded a VA examination in March 2012. However, it is unclear from the examination report the extent to which the examiner considered, if at all, the criteria listed in Diagnostic Code 5054 and/or DeLuca v. Brown, 8 Vet. App. 202 (1995). See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). Moreover, in light of the Veteran's subjective complaints of worsening symptoms since the March 2012 VA examination, the Board finds that the Veteran must be afforded a new VA examination on remand to assess the severity of his service-connected right hip osteoarthritis, status-post total hip replacement. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)) (noting that VA must provide a new examination when a veteran claims that a disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current state of the condition). VA is also required to make reasonable efforts to help the Veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). The evidence of record reflects that the Veteran receives VA treatment. Therefore, the RO must request all VA medical records pertaining to the Veteran from January 27, 2005. In addition, the Veteran must be contacted on remand and asked to identify any and all non-VA sources of treatment for the disability at issue that are not already of record. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of this claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA medical records pertaining to the Veteran from January 27, 2005. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development is completed, the Veteran must be afforded a VA examination to determine the current severity of his service-connected right hip disability. The claims file and Virtual VA records must be reviewed by the examiner in conjunction with the examination and the examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be conducted, to include a magnetic resonance imaging scan and x-ray, as deemed necessary by the examiner to properly evaluate the Veteran's service-connected right hip disability. Following the examination and a review of the evidence of record, and with consideration of the Veteran's statements and other lay statements of record, the examiner must record pertinent medical complaints, symptoms, and clinical findings, including range of motion, and comment on the functional limitations, if any, caused by the service-connected right hip disability. The examiner must determine the range of motion of the Veteran's right hip, in degrees, using a goniometer and noting by comparison the normal range of motion of the hip, with standard ranges provided for comparison purposes. If pain is present on any motion, the Veteran must be instructed to indicate to the examiner at what degree the pain begins and the examiner must report this finding. The examiner must address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement as a result of the Veteran's service-connected right hip disability after repetitions of the range of motion tests. The functional impairment due to weakened movement, incoordination, excess fatigability, or pain on movement must, if feasible, be assessed in terms of additional degrees of limitation of motion lost. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement of the right hip, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected right hip disability, the presence or absence of changes in condition of the skin indicative of disuse due to the service-connected right hip disability, and the presence or absence of any other objective manifestations that would demonstrate disuse or functional impairment due to pain attributable to the service-connected right hip disability. In addition, the examiner must indicate whether the service-connected right hip is manifested by markedly severe residual weakness, pain or limitation of motion following implantation of the prosthesis; and/or painful motion or weakness such as to require the use of crutches. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The Veteran must also be afforded a VA examination to determine the effects of his service-connected disabilities on his ability to obtain or maintain employment consistent with his education and occupational experience. The claims file and Virtual VA records must be reviewed in conjunction with the examination and the examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. Based on a review of the evidence of record, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, either alone or acting in concert, preclude or would preclude him from securing and following substantially gainful employment consistent with his education and occupational experience, without consideration of the Veteran's age and nonservice-connected disorders. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the requested examination has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. The examination report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 6. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JOHN Z. JONES 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).