Citation Nr: 1333983 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-42 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 10 percent for osteoporosis of the lumbar spine. 2. Entitlement to a rating in excess of 10 percent for osteopenia of the right hip. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty service from November 1974 to May 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that continued ratings of 10 percent each for osteoporosis of the lumbar spine and osteopenia of both hips. A notice of disagreement was received in January 2010, only as to the matters of increased ratings for osteoporosis of the lumbar spine and osteopenia of the right hip. A statement of the case was issued in September 2010, and a substantive appeal was received in October 2010. In July 2012 the Veteran testified at a hearing before the undersigned; the transcript has been associated with the claims file. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. 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 The Veteran was afforded VA examinations for joints and for the spine in July 2009. At her July 2012 hearing the Veteran was asked if she believed that her low back and right hip were more severe since the last VA examination; she responded in the affirmative. Moreover, a July 2012 statement from the Veteran's representative asserted that the Veteran's service-connected low back and right hip disabilities have increased in severity since the July 2009 VA examination. The Veteran's representative argued that the available evidence is too old for an adequate evaluation of the Veteran's current symptomatology and new examinations should be provided. See Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board observes that the Veteran has not been afforded VA examinations for the low back and right hip disabilities on appeal since July 2009, more than four years ago. Therefore, the Board concludes that a current examination for the service-connected lumbar spine and right hip disabilities is warranted. In addition, the Board notes that VA has an obligation to assist claimants in obtaining evidence, to include relevant records from VA medical care providers. 38 C.F.R. § 3.159. In a May 2009 statement the Veteran stated that she was being treated at the VA Medical Center (VAMC) in Chattanooga. Additionally, at the hearing she stated that she had been seen by a private orthopedic doctor. As such, the RO should take this opportunity to obtain any recent VA and private treatment records relevant to the Veteran's claims that have not yet been associated with the claims file, to include any relevant VA treatment records dating back to August 2009. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify all private providers of treatment for her low back and right hip disabilities, and to provide any authorizations necessary for VA to obtain records of any such private treatment. The RO should obtain complete clinical records (those not yet secured) from all sources identified. If any private provider does not respond to the RO's request for records, the Veteran and her representative should be so advised, and reminded that ultimately it is her responsibility to ensure that private records are received. 2. The RO should make arrangements to obtain all outstanding (not already contained in the claims file) VA medical records of treatment the Veteran has received for her low back and right hip disabilities since August 2009 (including specifically from the VAMC in Chattanooga, Tennessee). 3. After completion of the above, the Veteran should be scheduled for an appropriate VA examination to ascertain the current severity of her service-connected low back disability. It is imperative that the claims files be made available to the examiner for review in connection with the examination. All clinical and special test findings should be clearly reported, and pertinent findings should be reported to allow for application of the rating criteria for disability of the back. a). The examination should include range of motion studies. With regard to range of motion testing, the examiner should report at what point (in degrees) that motion is effectively limited by pain, as well as whether there is any additional functional loss due to weakened movement, excess fatigability, or incoordination. b). The report from the examination should include a discussion of whether the service-connected low back disability includes neurological deficits, to include bowel or bladder impairment, as well as intervertebral disc syndrome (IVDS). Any neurological complaints should be attributed to objective evidence based on the results of an electromyogram or nerve conduction testing, with the Veteran being provided with both in conjunction with the examination to the extent that neither has been accomplished. To the extent that IVDS is confirmed by the results of an electromyogram, nerve conduction testing, or other objective evidence, the examiner should state whether IVDS has necessitated bed rest and treatment prescribed by a physician, and the total duration of any such episodes in the past 12 months. 4. After completion of Instructions #1 and #2, the Veteran should be scheduled for an appropriate VA examination to ascertain the current severity of her service-connected right hip disability. It is imperative that the claims files be made available to the examiner for review in connection with the examination. All clinical and special test findings should be clearly reported, and pertinent findings should be reported to allow for application of the rating criteria for disability of the hip. The examiner should clearly report range of motion of the right hip and clearly report at what point (in degrees), if any, that the range of motion is limited by pain. Any additional functional loss due to weakness, fatigue, and/or incoordination should be reported (in degrees if possible), including during flare-ups. 5. After completion of all of the above, the RO should review the expanded record and readjudicate the issue or issues remaining on appeal. If any issue on appeal remains denied, the RO should furnish the Veteran with an appropriate supplemental statement of the case, and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. 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 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 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).