Citation Nr: 1418434 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 10-20 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial disability rating greater than 10 percent for the service-connected left hip trochanteric bursitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to May 1983. This case is 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) in Baltimore, Maryland. Two other issues were initially included on appeal. A Decision Review Officer decision in May 2011 increased the rating for the fracture of the right femur to 30 percent disabling. While this increase did not constitute a full grant of the benefits sought, the Veteran had indicated in his May 2010 VA Form 9 that a 30 percent evaluation would satisfy his appeal on this issue. Accordingly, the RO considered the appeal satisfied as to this issue, and the Veteran has not since argued otherwise. But see AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran also perfected an appeal for service connection for depression, but he was granted service connection for an adjustment disorder with depressed mood in May 2011, thus resolving this issue as well. All documents on the Virtual VA paperless claims processing system have been reviewed and considered. There are no documents in the Veterans Benefits Management System. The United States Court of Appeals for Veterans Claims has held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009)(citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)). Here, though the Veteran reported that he was unemployed from 2004 to 2012 due to service-connected disabilities, he is currently gainfully employed. See Board hearing transcript at p. 3. Accordingly, TDIU is not raised at this time. The issues of entitlement to service connection for a left lower extremity disability, to include as secondary to the service-connected right lower extremity disability, and to include as resulting from an altered gait therefrom, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See April 2009 claim; June 2009 Veteran statement. The Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regarding the evaluation for the left hip trochanteric bursitis, the record shows that the Veteran was last afforded a VA examination in December 2010, during which the examiner indicated no instability associated with the left hip disability. However, at the June 2012 Board hearing, the Veteran reported instability and worsening symptoms since the last VA examination. In light of this new symptomatology, worsening of symptoms since the last VA examination, and the fact the Veteran has not been examined in over three years, the Board finds that a new VA examination is warranted to determine the current nature and severity of the service-connected left hip trochanteric bursitis. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from October 2009 to present. Associate any records obtained with the claims file or on VBMS. 2. Afterwards, schedule the Veteran for a VA orthopedic examination to determine the current nature and severity of the Veteran's left hip trochanteric bursitis. The examiner should review the claims file, including Virtual VA and VBMS records. The examiner should also perform all necessary procedures, to include an interview of the Veteran and range of motion testing. The examiner should also set forth the extent of any functional loss present for the service-connected left hip disability due to weakened movement, excess fatigability, incoordination, or pain on use. Any additional impairment on use or in connection with any flare-up should be described in terms of the degree of additional range-of-motion loss. All opinions must be supported by a rationale in a typewritten report. 3. After completing the development regarding evaluation of the left hip, adjudicate the Veteran's claims. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. 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). 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). _________________________________________________ A. C. MACKENZIE Acting 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).