Citation Nr: 1338593 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-27 528A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a higher evaluation for degenerative joint disease of the right hip, rated at 10 percent prior to March 5, 2013, and 20 percent since that time. 2. Entitlement to a rating in excess of 10 percent for limitation of extension of the right thigh. 3. Entitlement to a rating in excess of 0 percent for limitation of flexion of the right thigh. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denying an initial evaluation for right hip degenerative joint disease in excess of 10 percent. A videoconference hearing was held before the undersigned Veterans Law Judge in December 2011. Thereafter, in February 2013 the Board remanded this case. A March 2013 RO rating decision increased to 20 percent the evaluation for right hip degenerative joint disease, effective March 5, 2013, under Diagnostic Code (DC) 5003-5253. The RO further awarded a separate 10 percent evaluation for limitation of extension of the right thigh under DC 5003-5251, and a separate 0 percent (noncompensable) evaluation for limitation of flexion of the right thigh under DC 5003-5252, each from March 5, 2013. Based on the Veteran's March 2013 correspondence, the Board takes jurisdiction of an inextricably intertwined claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2011). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, further development is still required in this matter. Whereas the Board's prior remand directed that the RO/AMC obtain the Veteran's VA treatment records dated since 2006 (and July 2013 Supplemental Statement of the Case (SSOC) indicates review of them), the actual records are absent from the claims file as well as the electronic "Virtual VA" file. The Board thus has no means of independently reviewing them. This problem must be addressed through a remand, and in the interim, an updated VA Compensation and Pension examination should be completed as to the severity of service-connected right hip disability. On the recently raised claim for TDIU, the Veteran should be apprised of how to substantiate this claim, and afforded a formal claim application. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA letter regarding the claim for a TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2013), and all other applicable legal precedent. 2. Send the Veteran a copy of VA Form 21-8940, Formal Application for a TDIU. 3. Obtain a complete copy of the Veteran's treatment records from the Durham, North Carolina, VA Medical Center (VAMC) dated since December 2006, and associate a copy of these records with the claims folder (and/or the electronic "Virtual VA" folder). 4. Thereafter, schedule the Veteran for a VA orthopedic examination of his right hip. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected right hip disabilities (i.e., degenerative joint disease, and limitation of flexion and/or extension). The examiner should specifically address the following: a) Report the Veteran's range of motion of the right hip in degrees and state the point at which any pain is demonstrated. b) State whether the right hip exhibits weakened movement, excess fatigability, or incoordination attributable to his service-connected disabilities 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. c) Give an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right hip is used 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. d) After reviewing the most recent radiographic images of the right hip, describe any degenerative changes found to be present. e) The examiner must comment on whether the Veteran's right hip disorder and right and left knee disorders, in the aggregate, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Finally, readjudicate the Veteran's claims on appeal. If any claim is not granted in full, provide the Veteran and his representative with a supplemental statement of the case, and after he has had an adequate opportunity to respond, return this case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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). _________________________________________________ P.M. DILORENZO 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).