Citation Nr: 1328428 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 06-08 949 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 20 percent for muscular strain of the low back. 2. Entitlement to a rating in excess of 30 percent for residuals of a right hip injury. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 2005 rating decision, by the Cleveland, Ohio, Regional Office (RO), which increased the rating for chronic muscular strain of the low back from 10 percent to 20 percent, but denied the claim for a rating in excess of 30 percent for residuals of fracture of the right hip, with arthritis. On May 17, 2007, the Veteran appeared and offered testimony at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing has been associated with the claims folder. In February 2008, the Board remanded the case to the RO for further evidentiary development. In a June 2009 decision, the Board denied the Veteran's claims for increased ratings for his low back and right hip disabilities. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2010 Joint Motion for Remand of BVA Decision on Appeal (Joint Motion), the parties asked that the Board's June 2009 decision be vacated and the matter be remanded to the Board for readjudication and disposition consistent with the Joint Motion. On January 20, 2010, the Court granted the Joint Motion and vacated the June 2009 decision, remanding the case to the Board for readjudication and disposition consistent with that motion. In June 2010, the Board remanded the case to the RO for further development pursuant to the Court Order. Following the requested development, a supplemental statement of the case (SSOC) was issued in December 2012. 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 the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the January 2010 joint motion, which addressed the issue of entitlement to an increase in a 20 percent rating for muscular strain of the low back, the parties agreed that the Board failed to provide adequate reasons and bases for its determinations. The joint motion indicated that the Board failed to adequately discuss functional impairment as it applies to the Veteran's claim for an increased rating for his service-connected low back disorder, pursuant to the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). The most recent VA spine examination was performed in January 2009, over four years ago. VA treatment records dated from September 2008 through November 2012 show that the Veteran receives ongoing clinical attention and treatment for chronic low back pain. In December 2010, it was noted that he was ambulating with forearm crutches. The Board finds that an updated VA examination is needed to fully and fairly evaluate the Veteran's claim for an increased disability rating. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). VA is required to afford the Veteran a contemporaneous examination to assess the current nature, extent, and severity of his disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In addition, in November 2012, treatment records from a VA Toledo Outpatient Clinic, in Toledo, Ohio, were added to the Veteran's Virtual VA electronic claim file. There is no indication that this additional medical evidence was considered in the December 2012 SSOC as it was not listed as evidence that was considered or otherwise discussed. Therefore, the Board finds that a remand is necessary to associate with the claims file any relevant records currently in Virtual VA. See 38 C.F.R. § 19.7 (2012) (decisions of the Board are based on a review of the entire record). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non- VA, who have treated him for his low back and right hip disorders since January 2009. After the Veteran has signed the appropriate releases, any identified records of pertinent medical treatment should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If VA cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. The Veteran should be afforded a VA compensation examination in order to determine the current severity of the service-connected low back disability. The claims folder, including a copy of this remand and any relevant medical records contained in the Virtual VA system, must be sent to the examiner for review in conjunction with the examination. All necessary tests and studies should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should identify all orthopedic and neurological symptoms related to the service-connected disability and fully describe the extent and severity of those symptoms. The examiner should also report the ranges of motion for the thoracolumbar spine and state whether the Veteran's service- connected muscular strain of the low back is manifested by weakened movement, excess fatigability, incoordination, or pain. Such disability should be equated to additional motion lost (beyond what is shown clinically) due to the functional effects of any weakened movement, excess fatigability, incoordination, or pain. The examiner should specifically indicate the point at which the Veteran begins to experience pain. The examiner should provide a comprehensive report including complete rationale for all conclusions reached. 3. The Veteran should also be scheduled for a VA examination to determine the current level of severity of his service-connected right hip disorder. The claims folder, including a copy of this remand and any relevant medical records contained in the Virtual VA system, must be sent to the examiner for review in conjunction with the examination. All necessary testing should be provided. The examiner should write a comprehensive report discussing the current severity of the Veteran's right hip disorder. Range-of-motion testing on thigh extension and flexion should be done. The examiner should determine whether the left hip exhibits pain or painful motion, weakened movement, premature or excess fatigability, or incoordination. All such functional losses should be equated to additional loss of motion (beyond what is shown clinically). See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). A report of the examination should be prepared and associated with the Veteran's claims folder. The report should include a detailed rationale for all opinions and conclusions regarding the disabling manifestations of the right hip. 4. The AOJ should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the AOJ should readjudicate the Veteran's claims on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran in any way, he and his representative should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decisions reached. Thereafter, the Veteran and his representative should be given the opportunity to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the Veteran until he receives further notice. The purposes of this remand are to further develop the record and to the accord the Veteran due process of law. By this remand, the Board does not intimate any opinion, either factual or legal, as to the ultimate disposition warranted in this case. 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). 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). _________________________________________________ J. A. MARKEY 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).