Citation Nr: 1312409 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 07-18 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for sciatica associated with a status post left distal femur fracture. REPRESENTATION Appellant represented by: David L. Huffman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1991 to February 1992. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appeal originates from an October 2005 rating decision, which denied service connection for left knee, right hip, and left hip disabilities, lumbar and thoracic spine strain, and for sciatica. The October 2005 rating decision also denied entitlement to an increased evaluation in excess of 10 percent for status post distal left femur fracture. The Veteran perfected a timely appeal as to those issues, and the Board remanded the case for further development in May 2008. The RO granted service connection for sciatica as secondary to a status post left distal femur fracture in October 2008, and the Veteran appealed the initial 10 percent rating that was assigned. The Board remanded the case again in July 2010. While the Board also remanded issues of entitlement to (1) service connection for a thoracolumbar spine disorder, to include as secondary to the service-connected left hip and left knee disabilities, (2) service connection for a right hip disorder, to include as secondary to the service-connected left hip and left knee disabilities, (3) an increased evaluation for status post distal left femur fracture (left hip disability), currently evaluated as 10 percent disabling, and (4) an increased initial evaluation for left knee chondromalacia patella and parapatellar pain, currently evaluated as 10 percent disabling; those issues have not been recertified to the Board and are still in remand status. In that regard, the RO has not issued a supplemental statement of the case addressing those issues, and there is no indication that those issues have otherwise been recertified to the Board for adjudication at this time. The Veteran provided testimony with respect to the appeal for a higher initial evaluation for sciatica during an October 2012 Board personal hearing in Huntington, West Virginia (Travel Board) before the undersigned Veterans Law Judge. The hearing transcript has been associated with the claims file. A Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. The Board notes that while the Veteran testified at prior March 2008 and July 2009 hearings before two different Veterans Law Judges, these hearings only addressed issues of service connection for a thoracolumbar spine disorder, service connection for a right hip disorder, an increased evaluation for status post distal left femur fracture (left hip disability), and an increased initial evaluation for left knee chondromalacia patella and parapatellar pain, which remain in remand status as discussed above. The Veteran did not provide testimony with respect to the appeal for a higher initial evaluation for sciatica during either of those hearings. Because the undersigned Veterans Law Judge has only heard testimony as to the appeal for a higher initial evaluation for sciatica, a panel decision is not necessary for disposition of this claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011); 38 U.S.C.A. §§ 7102, 7107 (West 2002 & Supp. 2011); 38 C.F.R. § 20.707 (2012). Unfortunately, the Board finds that an additional remand is necessary prior to review of the Veteran's appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). During the October 2012 Board hearing, the Veteran testified that since the most recent October 2010 VA examination, he has noticed a worsening in his sciatica and the Veteran's representative contends that a new VA examination is warranted. In light of the foregoing, the Board finds that a remand for an updated VA examination is necessary to address the current severity of the service-connected sciatica associated with a status post left distal femur fracture. During the Veteran's hearing testimony, he identified continuing treatment at the VA Medical Center in Clarksburg, West Virginia, to include treatment at the Community Based Outpatient Clinic in Parkersburg, West Virginia. The RO/AMC should obtain updated VA medical records on remand should associate them with the claims file. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error.") Accordingly, the case is REMANDED for the following action: 1. The RO should obtain any updated VA treatment records dated from January 2012 to the present from the VA Medical Center in Clarksburg, West Virginia, to include outpatient treatment records from Parkersburg, West Virginia, and should associate them with the record. If the search for such records has negative results, the RO/AMC should notify the Veteran and place a statement to that effect in the Veteran's claims file. 2. The Veteran should be afforded a VA neurological examination to determine the current severity of the service-connected sciatica associated with a status post left distal femur fracture. The claims file must be made available to the examiner for review. The VA examiner must review any additional evidence associated with the record. All indicated tests should be performed and the findings reported in detail. 3. After all development has been completed, the RO should review the case again based on the additional evidence. If the benefits sought are not granted, the RO should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran 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). _________________________________________________ K. J. ALIBRANDO 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).