Citation Nr: 1328987 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 00-08 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for a right hip disability, currently rated 10 percent. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied a TDIU. In December 2004, the Board remanded the claim for additional development. The Board denied a TDIU in October 2005. The Veteran appealed to the Court of Appeals for Veterans Claims. The TDIU issue was remanded to the Board in an April 2007 Order of the Court, which granted a Joint Motion for Remand. In August 2007, the Board remanded for additional development. The Board denied a TDIU in March 2008. The Veteran again appealed to the Court. The TDIU issue was remanded to the Board in a December 2008 Order of the Court, which granted a Joint Motion for Remand. The Board remanded for additional development in May 2009, December 2009, August 2010, and November 2012. In the last remand, it was explained that additional development also was needed with respect to an increased rating for a right hip disability , which was raised in conjunction with a TDIU and denied in a May 2012 supplemental statement of the case, to afford the Veteran the opportunity to perfect an appeal of that determination. He did so through his representation following completion of the directed development in July 2013. The claims are REMANDED to the RO via the Appeals Management Center, in Washington, D.C., based on review of the Veteran's paper claims file and Virtual VA electronic claims file. REMAND Although the Board regrets the delay of another remand, adjudication of this matter cannot be undertaken at this time. Further additional development is needed to ensure that the Veteran is afforded every possible consideration. VA has a duty to assist Veterans in substantiating claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This duty requires that VA make reasonable efforts to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). When the existence of records that are not in the custody of the federal government is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2012). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2012). The claimant shall be notified if requested records cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). VA treatment records dated into March 2013 are of record. They document the Veteran's ongoing treatment for his right hip. It thus is inferred that there may be pertinent VA treatment records dated from March 2013 to present. However, there is no indication that they have been requested by VA. A request or requests for them must be made. Bell v. Derwinski, 2 Vet. App. 611 (1992). With respect to private treatment records, the Board's November 2012 remand highlighted that the Veteran's report seeing Dr. C. in the past for pain management. Dr. C.'s treatment records were noted to be pertinent because the Veteran's primary right hip symptom appears to be pain. The directed development included making attempts to obtain them and records from any other private provider identified by the Veteran as providing pertinent treatment. However, no attempts were undertaken. That is because the Veteran did not cooperate by providing enough information to identify and locate the aforementioned records or authorize their release to VA. He should be allowed another chance to do so, or to submit the aforementioned records himself, since a remand is necessary for other reasons. If he provides the information and authorization, an initial request for the records must be made with a follow-up request or requests as necessary. The Veteran and his representative must be notified if any requests are unsuccessful. VA's duty to assist additionally includes a mandate that any VA medical examination obtained be adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Hayes v. Brown, 9 Vet. App. 67 (1996). A VA medical examination is adequate when it allows the Board to perform a fully informed evaluation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, it must describe the disability in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). It also must be contemporaneous. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517 (1995); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Olson v, Principi, 3 Vet. App. 480 (1992); Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991). In November 2010, the Veteran last underwent a VA medical examination for his right hip. Neither he nor his representative has specifically contended that his right hip disability has gotten more severe since then. Yet the examination is of considerable age because it was conducted almost three years ago. It also does not supply some of the information vital for adjudication. Specifically, the Veteran's right hip disability was not described in sufficient detail with respect to limitation of motion. No measurements of his range of motion in any direction were taken. It was noted that he could not perform range of motion testing due to pain. On remand, then, he must be afforded the opportunity to appear for a contemporaneous VA medical examination that includes an assessment of any limitation of motion. The TDIU issue is inextricably intertwined with the increased rating . Issues indeed are considered inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another issue. The determination made for the increased rating issue has bearing on the TDIU issue. The appropriate remedy is to defer adjudication of the affected issue until the issue that may cause the effect has been adjudicated. Harris v. Derwinski, 1 Vet. App. 180 (1991). The increased rating issue thus must be adjudicated, following completion of all development necessary to do so, prior to adjudication of the TDIU issue. Given the above, a REMAND is directed for the following: 1. Obtain all VA treatment records regarding the Veteran from March 2013 to present. Associate all records received with claims file. 2. Ask the Veteran to provide his treatment records from Dr. C. and any other private provider that has seen him for treatment of his right hip. Alternatively ask him to provide enough information to identify and locate those records and authorization for their release to VA. If he does so, make an initial request for the records with a follow-up request or requests as necessary. Associate all records received with the paper claims file or Virtual VA electronic claims file. If any requested records are not received or are received but are incomplete, notify the Veteran and his representative. Document the claims file with actions undertaken. 3. After completion of the above, schedule the Veteran for an appropriate VA medical examination of his right hip. The examiner must review the claims file, and should note that review in the report. The examiner should include in the report details of an interview of the Veteran and results of all tests deemed necessary. The tests should include those to assess his right hip range of motion in all directions. If any test cannot be completed, the examiner must specify the reason why. It should be indicated whether or not the Veteran was willfully uncooperative. The examiner should opine in the report as to the impact the Veteran's right hip disability alone (without consideration of other disabilities or his age) has on his employability. A clear and complete explanation should be provided for that opinion. 4. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran is advised that the duty to assist is not a one-way street and that he has an obligation to cooperate with VA in ensuring that duty is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). Any failure to report for any scheduled examination without good cause may result in an adverse determination. 38 C.F.R. § 3.655 (2012). Any willful failure to cooperate during any scheduled examination also may result in an adverse determination. Turk v. Peake, 21 Vet. App. 565 (2008). The Veteran also is advised that he has the right to submit additional evidence and argument. 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).