Citation Nr: 1331857 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-07 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for a total left hip replacement. 2. Entitlement to a disability rating in excess of 10 percent for right hip dysplasia and arthritis, prior to November 14, 2011. 3. Entitlement to a disability rating in excess of 30 percent for a total right hip replacement since January 1, 2013. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 and May 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that the RO determined this appeal arises from a May 2009 rating decision. However, the Board finds that the appeal of the disability rating assigned to the Veteran's service-connected right hip arises from a March 2008 rating decision which granted the Veteran a temporary total disability rating for the left hip based on the need for convalescence pursuant to the provisions of 38 C.F.R. § 4.30 from September 9, 2007, and continued a 30 percent rating effective from November 1, 2008. During the appeal period following the issuance of this rating decision, the Veteran then submitted evidence that he is in receipt of Social Security Administration (SSA) disability benefits due to his bilateral hip disability. Thus, under 38 C.F.R. § 3.156(b), the new evidence is considered to have been submitted in connection with the claim that was pending. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (holding that VA must evaluate submissions received during the relevant appeal period and determine whether they contain new evidence relevant to a pending claim); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that if new and material evidence is received before an appeal period has expired, a rating decision does not become final). In a December 2011 rating decision, issued during the pendency of the Veteran's appeal, the RO the Veteran's right hip dysplasia and arthritis disability was recharacterized to a total right hip replacement, Diagnostic Code 5054. He was assigned a temporary total disability rating based on the need for convalescence, pursuant to the provisions of 38 C.F.R. § 4.30 from November 15, 2011 to December 31, 2012. Additionally, the Board notes that during the Veteran's March 2011 Travel Board hearing, he testified he last worked in 2005, 2006, or 2007 on account of his bilateral hip disabilities. Accordingly, the issue of TDIU is part and parcel of the determination of the increased evaluations for the Veteran's service-connected left and right hip disabilities and is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability; if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted). For purposes of clarity, this issue has been separately listed on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks increased ratings for his service-connected left and right hip disabilities. Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The record shows that the Veteran last underwent a VA examination in May 2009, over four years ago. Since that May 2009 VA examination, the Veteran testified during his March 2011 Travel Board hearing that he continues to receive treatment for his hip disabilities at VA medical centers. He also testified that the severity of his bilateral hip disabilities has worsened since the May 2009 examination. Additionally, VA treatment records indicate the Veteran underwent a total replacement of his right hip in November 2011. Therefore, in light of this evidence indicating a possible worsening of symptoms, VA is required to afford him a contemporaneous VA examination to assess the current nature and severity of his left and right hip 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). Also, as noted above, the Board finds the issue of entitlement to a TDIU to be on appeal. Additional development is needed on this issue, to include appropriate VCAA notice and a VA examination to address whether or not the Veteran's service-connected disabilities preclude him from substantially gainful employment, particularly in light of his receipt of disability benefits from SSA based on his bilateral hip disabilities. Finally, on remand, any additional private or VA treatment records dated after November 2011 pertaining to the Veteran's right and left hip disabilities should be obtained. See 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice to inform him of the information needed to substantiate a claim of entitlement to TDIU. 2. Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the AOJ to obtain any additional evidence pertinent to the claims on appeal. After securing the necessary authorizations for release of this information, the AOJ should seek to obtain copies of all records referred to by the Veteran not already of record, specifically from any private physicians or any relevant VA treatment records dated since November 2011. The AOJ must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. 3. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge of the nature, extent and severity of his right and left hip disabilities. He should be provided a reasonable amount of time to submit this lay evidence. 4. After the above development is completed, schedule the Veteran for an appropriate VA examination to assess the current nature and severity of the service-connected hip disabilities. The claims file must be made available and reviewed by the examiner. All tests deemed necessary by the examiner shall be performed and all findings reported in detail. a. It is requested that the examiner identify all symptoms and manifestations of the Veteran's right and left hip disabilities. A comprehensive clinical history must be obtained. The examination report must include discussions of the Veteran's medical history and assertions. b. The examiner is specifically requested to provide range of motion findings for each hip. The examiner must determine whether each hip has weakened movement, excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination, to include the Veteran's pain-free range of motion. c. The examiner must also express an opinion on whether pain could significantly limit functional ability during flare-ups or when the right and left hips are moved repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups, i.e., pain-free motion during flare-ups. A complete rationale for any opinions expressed and conclusions reached should be set forth in a legible report. 5. Schedule the Veteran for a VA examination to determine if it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran is precluded from obtaining or maintaining substantially gainful employment on account of his service-connected disabilities, in light of the Veteran's education and work experience. In making this determination, the VA examiner should take into account the Veteran's education and work history, but may not consider the Veteran's age. A detailed rationale must be provided for any opinion expressed. 6. Thereafter, the Veteran's claims should be readjudicated. If any claim remains denied, the Veteran should be provided with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further appellate review. The Veteran 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). _________________________________________________ M. N. HYLAND Acting 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) (2013).