Citation Nr: 1332469 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-22 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left hip disorder, to include as due to a service-connected right hip disability. 2. Entitlement to service connection for sleep apnea, to include as due to a service-connected right hip disability. 3. Entitlement to an increased rating for chronic right hip strain with traumatic arthritis, currently evaluated as 20 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran claims his right hip disability is worse than currently rated. He further indicates he has a left hip disorder and sleep apnea are related to the symptoms of his right hip disability. He indicates he worked at the U.S. Postal Office for over thirty years, but stopped working around 2008 because of his disabilities. With regard to all the issues on appeal, the evidence of record does not contain any private or VA medical treatment records beyond 2009, four years ago. Any and all relevant outstanding medical records from 2009 to the present must be obtained. The Veteran was afforded a VA examination in January 2009 where the examiner addressed the Veteran's left hip disability, opining that the left hip mild degenerative changes were "less likely than not" related to the right hip. The examiner did not specifically address whether the Veteran's left hip was caused or aggravated by his service-connected right hip disability or any other incident of his military service. As such, the Board finds the VA examination inadequate and a new examination is indicated. Moreover, the Veteran has never been afforded a VA examination with respect to his sleep apnea claim. Here, the Veteran was last afforded a VA examination for his right hip in January 2009, over four years ago. Since that time, the Veteran indicates this disorder has worsened and in fact precludes his ability to obtain or maintain employment. The Veteran's private physician indicated in an August 2009 statement that the Veteran was currently unemployable as a result of both service-connected and nonservice-related disabilities. The evidence indicates the Veteran had a lengthy employment with the U.S. Postal Service where accommodations were made due to his disabilities. Ultimately, the Veteran claims he stopped working in 2008. A VA examination is necessary to assess the current severity of the Veteran's service-connected right hip and whether the Veteran is unemployable solely due to service-connected disabilities. See Friscia v. Brown, 7 Vet. App. 294 (1994) (indicating in a claim for TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work). The claim for TDIU is "inextricably intertwined" with the other claims being remanded here. Harris v. Derwinski, 1 Vet. App. 181 (1991). The issue must be adjudicated only after full development and adjudication of the Veteran's service connection and increased rating claims. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA facilities at which he received treatment for the disorders at issue since 2009. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO and any VA facilities identified must provide a negative response if no records are available. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After all records are obtained to the extent available, the Veteran must be afforded VA examinations to determine whether any currently or previously diagnosed sleep apnea and left hip disorder, to include arthritis, are related to his military service or to a service-connected disorder. The claims file and all electronic records must be made available to the examiners, and the examiners must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on the clinical examination and appropriate diagnostic tests, the evidence of record, and with consideration of the Veteran's statements, opinions as to the following must be provided: (i) Whether any degree of currently or previously diagnosed sleep apnea was incurred in service or otherwise due to his military service; (ii) Whether any degree of currently or previously diagnosed sleep apnea is proximately due to or aggravated by his service-connected right hip disability. (iii) Whether any degree of currently or previously diagnosed left hip disorder was incurred in service or otherwise due to his military service; and (iv) Whether any degree of currently or previously diagnosed left hip disorder is proximately due to or aggravated by his service-connected right hip disability. A complete rationale for all opinions must be provided. If the examiners cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiners must provide the reasons why an opinion would require speculation. The examiners must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiners must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report(s) prepared must be typed. 3. The Veteran must be afforded an appropriate orthopedic VA examination to assess the current severity of his right hip. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected right hip disability. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected right hip disability. The examiner must also state if there is ankylosis, flail joint, or impairment or malunion of the femur. If malunion of the femur is found, the examiner must state whether the malunion causes knee or hip disability that is "slight," "moderate," or "marked." The report must be typed. 4. Thereafter, the Veteran must be afforded an appropriate VA examination to determine to determine the effects of his service-connected disability, or disabilities, on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected right hip disability, and any other disorder service-connected as a result of this appeal, render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 5. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated, including the issue of entitlement to a TDIU. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).