Citation Nr: 1319505 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 07-04 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for residuals of a pelvic fracture, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from July 1978 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). However, jurisdiction of the Veteran's claims folder is currently with the RO in Atlanta, Georgia. In July 2009, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the Atlanta RO. A transcript of the hearing is of record. In September 2009, the Board remanded the Veteran's claim for additional development, to include scheduling the Veteran for a VA examination to assess the severity of his service-connected residuals of pelvic fracture. In November 2012, the Board again remanded the Veteran's claim for an increased rating for the service-connected residuals of a pelvic fracture in order to obtain updated treatment records, to include records from the Atlanta VAMC dated since February 2010, and to schedule the Veteran for a VA examination to assess the severity and residuals of the service-connected pelvic fracture, to include identifying any and all residuals pursuant to 38 C.F.R. §4.67. However, as will be discussed below, the Board is not satisfied that there was substantial compliance with the November 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Although further delay of this appeal is regrettable, the appeal must again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends that his service-connected residuals of a pelvic fracture are more severe than currently rated. The service-connected residuals of pelvic fracture are currently assigned a 10 percent rating under the provisions of Diagnostic Code (DC) 5251 (limitation of extension of the thigh). What is at issue in this matter, and which has yet to be adequately addressed by the RO/AMC, is the applicability of 38 C.F.R. § 4.67, which provides that the variability of residuals following pelvic bone fractures necessitates rating on specific residuals, faulty posture, limitation of motion, muscle injury, painful motion of the lumbar spine, manifest by muscle spasm, mild to moderate sciatic neuritis, peripheral nerve injury, or limitation of hip motion. In the November 2012 remand, the Board noted that residuals of a pelvic fracture must be rated with consideration of 38 C.F.R. § 4.67. The Board found that the AOJ had not identified the residuals associated with the Veteran's pelvic fracture, noting that in an April 2004 statement, his representative requested consideration of 38 C.F.R. § 4.67, but that the June 2004 rating decision, the December 2006 statement of the case (SOC), and the November 2010 supplemental statement of the case (SSOC) did not cite to or discuss 38 C.F.R. § 4.67. In response to the Board's remand, VA treatment records were obtained and the Veteran underwent a VA examination in February 2013. Subsequently, an SSOC was issued in March 2013, which denied a rating in excess of 10 percent for the service-connected residuals of pelvic fracture. However, there was no citation to, or specific consideration of, 38 C.F.R. § 4.67. While a March 2013 rating decision granted service connection for degenerative joint disease of the lumbar spine, as secondary to the service-connected residuals of pelvic spine, this grant only addressed a portion of the potential residuals listed in 38 C.F.R. § 4.67. In further reviewing 38 C.F.R. § 4.67, the Board finds that there are potentially other residuals of the Veteran's service-connected pelvic disability that have yet to be considered - to include specifically faulty posture, mild to moderate sciatic neuritis, and peripheral nerve injury. In this regard, the Board notes that there is objective medical evidence confirming that the Veteran has asymmetry of the pelvis and a limb length discrepancy, and, in addition, he has continued to complain of various leg symptoms including numbness, shooting pain, and radiating pain, which he contends are related to his service-connected pelvic disability. Thus, the Veteran is entitled to consideration of the pelvic asymmetry and/or leg length discrepancy with respect to the service-connected pelvic disability, and/or he may be entitled to separate ratings for additional neurological deficits, related to the service-connected pelvic disability. The Board acknowledges that, on the most recent VA examination in February 2013, the Veteran denied flare ups, had essentially normal range of left hip motion without pain, had no additional limitation of motion or functional impairment on repetitive motion testing, and exhibited normal muscle strength. While these findings do not suggest that an increased rating would be warranted under DC 5251, the Board notes that that diagnostic code deals only with limitation of extension of the thigh and does not encompass other potentially compensable residuals as set forth in 38 C.F.R. § 4.67. As the record does not contain sufficient consideration and/or medical evidence to determine whether an increased rating or separate ratings are warranted pursuant to 38 C.F.R. § 4.67, this matter must be remanded for additional development, to include either an addendum or an additional VA examination. The VA examiner should be notified of the competent medical evidence of the asymmetry of the Veteran's pelvis and limb length discrepancy and of the Veteran's complaints of various leg symptoms including numbness, shooting pain, and radiating pain. The VA examiner should also be asked to identify any and all current residuals of the pelvic fracture on examination, to include the residuals as set out in 38 C.F.R. § 4.67. Accordingly, the case is REMANDED for the following action: 1. Arrange for the VA examiner who provided the February 2013 VA DBQ report and opinion to review the Veteran's claims folder and note that such review has been accomplished. Then, the examiner should be asked to discuss any and all associated residuals of the Veteran's service-connected pelvic fracture, to include specifically the following: faulty posture, limitation of motion, muscle injury, painful motion of the lumbar spine, muscle spasm, mild to moderate sciatic neuritis, peripheral nerve injury, or limitation of hip motion. See 38 C.F.R. § 4.67. In this regard, the VA examiner should be advised of the competent medical evidence of the Veteran's asymmetry of the pelvis and limb length discrepancy, as well as his complaints of various leg symptoms including numbness, shooting pain, and radiating pain, and should be asked to address whether any such finding or symptom may be related to the Veteran's service-connected residuals of pelvic fracture. To that end, the examiner should describe all neurological manifestations of the service-connected pelvic disability, and should opine as to whether any neurological symptoms are attributable to the Veteran's service-connected cervical spine disability. If the original VA DBQ examiner (from February 2013) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by any examiner, a clinical examination of the Veteran should be conducted. The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and an explanation provided as to why this is so. 2. Then, the issue on appeal should be readjudicated. If this benefit is not granted to the Veteran's satisfaction, he and his representative should be provided with an SSOC which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).