Citation Nr: 1329812 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-17 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right fractured femur with residual scar. 2. Entitlement to an initial rating in excess of 10 percent for vertebral fracture. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from January 2002 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted service connection and assigned initial 10 percent ratings for a right femur fracture with residual scar and a vertebral fracture, effective July 18, 2007. The Veteran appealed with respect to the propriety of the initially assigned ratings. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. While the Veteran's Virtual VA file contains additional documents pertaining to other adjudicative actions, as relevant to the instant appeal, it does not contain any additional evidence with the exception of an August 2013 Appellate Brief submitted by the Veteran's representative. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran 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 claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to assess the nature and severity of his right femur and back disabilities. The Veteran was most recently examined by VA for these disabilities in November 2007; however, in his May 2009 substantive appeal, he contended that his disabilities were not accurately rated and that such had increased in severity. Specifically, he indicated that he was seen on numerous occasions at VA for chronic leg and back pain. He also stated that he has "lost many jobs do [sic] to the pain". While VA treatment records dated from July 2008 through July 2009 are of record, such only reveal treatment for leg and back pain. They do not include range of motion studies or descriptions of functional loss. Moreover, in an August 2013 brief, the Veteran's representative noted that the most recent VA examination in 2007 was too old to accurately assess the current status of the disabilities and requested a current VA examination. When a Veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, the Veteran should be afforded a contemporaneous VA examination so as to determine the current nature and severity of his right femur and back disabilities. As the case is being remanded, and it appears that the Veteran receives his treatment through VA, records from the Bedford, Massachusetts, VA Medical Center dated from July 2009 to the present should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Bedford, Massachusetts, VA Medical Center dated from July 2009 to the present pertaining to the Veteran's right femur and back disabilities. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his right femur and back disabilities. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. As relevant to the Veteran's right femur disability, the examiner is requested to identify the nature and severity of all current manifestations of such disability. The Veteran's right hip and right knee should be thoroughly examined, to include providing range of motion studies. The examiner should also examine the Veteran's scar, to include noting the size of such and any symptoms associated with it. As relevant to the Veteran's back disability, the examiner is requested to identify the nature and severity of all current manifestations of such disability. Range of motion studies should be completed. The examiner is further requested to identify any neurological impairment associated with the Veteran's back disability and, if present, the nerve affected and the severity of such impairment. The examiner should also comment upon the impact that the Veteran's right femur and back disabilities have on his employability. A complete rationale for any opinion expressed should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claims based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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). _________________________________________________ A. JAEGER 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).