Citation Nr: 1332699 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-25 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES Entitlement to an evaluation in excess of 10 percent for left hip strain with limited flexion, to include the propriety of reducing the evaluation from 40 percent to 10 percent disabling effective April 1, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from June 1950 to November 1950, and from April 1952 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that reduced the Veteran's evaluation for a left hip disability from 40 percent to 10 percent, effective April 1, 2012. In September 2013, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge. A transcript of this proceeding has been associated with the Veteran's virtual claims file. Concerning the hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In the present case, the undersigned fully identified the issues on appeal and asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim currently on appeal. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that, in addition to the physical claims file, there is also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND 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 claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In this case, the Veteran has contended in statements submitted to VA and in his September 2013 testimony before the Board that his left hip condition has worsened since his most recent VA examination. The examination that the Veteran referred to in his testimony was conducted in May 2011. Since that time, he was provided an additional examination dated in March 2012. This examination report is associated with his virtual claims file. In his testimony before the Board, the Veteran indicated that the 2011 examiner did not ask about, nor did he volunteer information regarding how painful his condition was. He also indicated that since that time, his hip had begun to lock up and that it would sometimes snap out of joint. The March 2012 examination report noted constant dull/sharp pain in the left lateral hip down the entire leg. Range of motion testing indicated slightly less flexion from the previous examination and additional limitation with repetitive testing. There was no indication of the left hip locking up or snapping out joint. Based on the foregoing, the Board finds that the Veteran should be given the benefit of the doubt and afforded a contemporaneous VA examination in order to determine the current level of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In this regard, the Board notes that the Court, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), recently held that, although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. Upon remand, the examiner is asked to address these criteria regarding functional loss. Prior to affording the Veteran a VA examination, the RO should associate with the Veteran's claims file records of treatment for his claimed disability. This should include updated records from VA. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability. This should specifically include updated treatment records from VA The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. The Veteran should be afforded a VA examination in order to assess the current nature and severity of his service-connected left hip disability. The Veteran 's claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must state that the examination report that the claims file was reviewed. The examiner should conduct complete range of motion studies and discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. The examiner should also indicate whether pain affects some aspect of the normal working movements of the body, such as excursion, strength, speed, coordination, and endurance. If the Veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. The examiner should also indicate the effect the disability has, if any, on the Veteran's current level of occupational impairment. Specifically, the examiner should render an opinion as to whether the service-connected disability causes marked interference with employment, or the need for frequent periods of hospitalization. A complete rationale for all opinions expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2013). _________________________________________________ ERIC S. LEBOFF 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).