Citation Nr: 1330014 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-15 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for lumbar strain, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for residuals of a fracture of the right femur, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for residuals of a fracture of the left femur, currently evaluated as 10 percent disabling. 4. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Louis D. Turco, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to February 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for an increased rating for his service-connected disabilities and for TDIU. By rating action dated March 2010, the RO increased the evaluation assigned for residuals of a fracture of the right femur from 10 to 20 percent disabling. The Veteran continues to disagree with the assigned rating. The issues of entitlement to service connection for disabilities of each knee have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran asserts a higher rating is warranted for his low back disability and for residuals of a fracture of each femur. He also argues he is unable to work due to the severity of his service-connected disabilities. The Veteran was afforded a VA general medical examination in May 2011. While there were some findings concerning the low back, the range of motion of the lumbar spine was not listed, and the examiner report contains a notation to see the spine examination. However, it does not appear such an examination was conducted. In addition, the Board notes that the residuals of a fracture of each femur are evaluated under Diagnostic Code 5255 (2013). This provides for a 20 percent evaluation for moderate knee or hip disability and a 30 percent evaluation for marked knee or hip disability. The May 2011 examination, however, does not provide any findings concerning the hips. During the hearing before the undersigned in October 2012, the Veteran asserted he has constant back pain and that he cannot sit or stand for very long. He claimed he spends most days lying in bed. He related he was receiving Social Security benefits for his low back and bilateral leg conditions. The Board notes the Veteran's attorney stated only VA records were used by the Social Security Administration in making its decision that the Veteran was disabled. Private medical records show the Veteran was seen in 2012 for complaints involving the knees and hip. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify all providers of evaluation and/or treatment he received for his low back disability and for the residuals of a fracture of each femur since 2012, and to provide authorizations for VA to secure records from any private providers identified. The RO should secure for the record copies of the complete clinical records from all providers identified. 2. After the development sought above is completed, the RO should arrange for an orthopedic examination of the Veteran to determine the current nature and severity of his service-connected lumbar strain and fracture of each femur. The Veteran's VA medical record must be reviewed by the examiner in conjunction with the examination. All indicated studies must be completed, and should specifically include range of motion studies, active and passive, of the low back, hips and knees. The examiner must note any additional functional limitations due to such factors as pain, use, etc., including during flare-ups and with repeated use over time. The examiner should also furnish an opinion concerning how each of the Veteran's service-connected disabilities affects his social and industrial capacity. The examiner should state whether it is as likely as not that the disabilities preclude substantially gainful employment (without consideration of the appellant's age). The claims folder should be made available to the examiner in conjunction with the examination. 3. The RO should then review the record and readjudicate the claim. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate consideration. 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). _________________________________________________ ALAN S. PEEVY 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).