Citation Nr: 1337807 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-23 555 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE 1. Entitlement to service connection for the residuals of a right leg fracture. 2. Entitlement to service connection for arthritis of the right leg. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the RO. The Board has reviewed the Veteran's electronic (Virtual VA) file, in addition to his paper claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are additional records relating to the Veteran's October 2009 pension claim among the Veteran's paperless records in Virtual VA. There are no additional records in VBMS. The Veteran expressed statements that appear to assert clear and unmistakable error (CUE) in connection with the December 2011 rating decision in his January 2012 Notice of Disagreement. A claimant need not raise a CUE claim in reference to a non-final RO decision. Best v. Brown, 10 Vet. App. 322, 325 (1997). As such, the Board will not review the appeal of December 2011 rating decision on the basis of a CUE standard of proof. See 38 C.F.R. § 3.105(a) (2013). The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran seeks service connection for the residual disability from a November 1969 in-service right leg fracture. He attended an October 2011 VA examination in connection with this claim. The examiner noted the in-service distal fracture of the right fibula, and the Veteran's regular use of a cane. He offered a negative medical nexus opinion as to the possibility that this in-service fracture had caused any current hip pain, citing the fracture as healed 49 years ago. The service treatment records clearly show a fracture of the distal right fibula in November 1969, with follow up treatment through February 1970. However, the RO's examination request cited a femur fracture; and the October 2011 VA examiner conducted his examination as if it were a claim for right hip pain, with strength and range of motion testing for the hip joint rather than the knee or ankle joints. The examination also did not include X ray studies of any joint. The VA treatment records show complaint of right leg pain between the knee and ankle in November 2009, October 2010 diagnosis for right knee arthralgia, and October 2010 fitting for a right leg orthosis. The October 2011 VA examiner's opinion failed to note the ongoing treatment for right knee and lower leg pain documented in the VA treatment records. When the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran should be afforded a new VA examination, to examine the lower right leg as opposed to the hip. Finally, the record reflects that the Veteran receives treatment through VA. On remand the RO should obtain any outstanding treatment records prior to performing the necessary VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to associate copies of any outstanding treatment records, since April 2011, from VA with the record. 2. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed right leg fracture residuals, including any arthritis of involved joints. The examiner should review the claims file in conjunction with the examination, and should opine as to whether it is at least as likely as not (50 percent or greater probability) that any lower right leg disability including arthritis of any joint is due to the November 1969 fracture or other event or incident of the Veteran's period of active service. 3. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeal 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).