Citation Nr: 1325910 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-21 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis of the left hip. REPRESENTATION Veteran represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina in April 2010. In pertinent part of that rating decision, the RO granted entitlement to service connection for osteoarthritis of the left hip and assigned an initial 10 percent disability rating, effective August 7, 2009. The Veteran submitted a notice of disagreement (NOD) in September 2010. The RO subsequently issued a May 2011 statement of the case (SOC). In July 2011, the Veteran filed a substantive appeal (VA Form 9). The RO issued a supplemental SOC in August 2011. The appeal is 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 Board's review of the claims file reveals that further RO action in regard to the appeal is warranted, even though such will, regrettably, further delay an appellate decision. Pursuant to 38 C.F.R. § 3.327(a) (2012), examinations will be requested whenever VA determines that there is a need to determine the exact severity of a disability. See also 38 C.F.R. § 3.159 (2012). Because the last examination was conducted in March 2010 and the Veteran has contended that his disability has worsened since that time, further examination is warranted. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain all pertinent, outstanding records. The record reflects that there are outstanding VA medical records which may be pertinent to the claim. Specifically, the claims file does not reflect any VA treatment records dated after August 1, 2011. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The evidence of record also indicates that the Veteran receives medical treatment for his hip through TriCare and via private physicians. Therefore, the RO should take appropriate steps to obtain the Veteran's TriCare records and to give the Veteran another opportunity to present private medical evidence pertinent to the claims on appeal. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to readjudicating the claim in light of all pertinent evidence and legal authority. Accordingly, the case is REMANDED for the following action: 1. Gather any outstanding VA treatment records from facilities in South Carolina. Note that records generated after August 1, 2011 are outstanding. Associate any available records with the claims file. If no such records are available, include documentation of the unavailability in the claims file. 2. Take appropriate steps to obtain the Veteran's TriCare treatment records - follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Afford the Veteran an additional opportunity to submit any private evidence that is not within the current record. Provide him with forms authorizing the release of any outstanding private treatment records, to include, but not limited to, records from Dr. Davis, Dr. Lalli, and the Medical University of South Carolina. Make at least two (2) attempts to obtain records from any identified source and associate available records with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA joints examination, by an appropriate medical professional, at a VA medical facility. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented assertions and medical history, to specifically include his TriCare and private treatment. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the current severity of the left hip osteoarthritis, to specifically include, but not limited to, range of motion measurements. The examiner should discuss whether, considering all pertinent lay and medical evidence, there has/have been any change(s) in the severity of the service-connected left hip osteoarthritis since the last, March 2010, VA examination. If so, the examiner should identify the approximate date(s) of any such change(s), and provide an assessment of the severity of the disability for each date. The examiner should set forth all findings and test results, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain, and associate with the claims file, copies of any notices of the date and time of the examination sent to him by the pertinent VA medical facility. 6. Readjudicate the remanded claim, to include consideration of any appropriate staged ratings. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claim is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). _________________________________________________ MARJORIE A. AUER 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).