Citation Nr: 1542804 Decision Date: 10/05/15 Archive Date: 10/13/15 DOCKET NO. 09-07 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a disability rating in excess of 10 percent for status post right femur fracture with residual right knee pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active service from August 2001 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The matter was last before the Board in January 2013, when it was remanded for further development. See January 2013 Board Decision. In February 2015, the RO granted service connection for right leg degenerative joint disease; consequently, this issue is not on appeal and is not addressed in this opinion. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Veterans Benefits Management System (VBMS) paperless claims processing system contains additional documents pertinent to this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is required for a new VA examination. The Veteran had VA examinations for his right leg disability in December 2014; however, they failed to measure range of motion and are therefore inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify and secure any relevant private treatment records that are not in the claims file. Associate any records identified by the Veteran with the claims file. If any records are unavailable, document their unavailability within the claims file and advise the Veteran so that he can submit any copies in his possession. 2. Obtain any outstanding VA treatment records dating from October 2013 forward and associate them with the claims file. 3. After the passage of a reasonable amount of time or upon the Veteran's response, schedule an orthopedic examination(s) to assess the nature and severity of the Veteran's status post right femur fracture with residual right knee pain and the functional limitations, if any, resulting from the disability. The entire claims file and a copy of this REMAND must be provided to the VA examiner(s) prior to the examination(s). The examiner(s) must indicate in the examination report(s) that the evidence in the claims file has been reviewed. The following considerations must govern the examination(s): a. The examiner should identify the nature, frequency, and severity of the symptoms associated with the Veteran's status post right femur fracture with residual right knee pain. b. Provide range of motion measurements for the Veteran's right hip joint expressed in degrees. The examiner must measure extension, flexion, rotation, adduction, and abduction of the right thigh. c. Conduct repetitive motion testing and note, in degrees, any decrease of range of motion after repetitive use. The examiner must also note, in degrees, any decrease of range of motion due to flare ups. d. Determine whether the right hip exhibits weakened movement, excess fatigability with use, incoordination, painful motion, and/or pain with use, and express any additional limitation of motion in terms of additional degrees of motion lost. e. State whether there is any evidence of ankylosis of the right hip and/or a hip flail joint. f. Report on any lateral instability in the right knee and, if instability exists, the degree of instability (severe, moderate, or slight). g. Report on whether the flexion of the Veteran's right knee is limited to 15 degrees, 30 degrees, 45 degrees, or 60 degrees. h. Report on whether the extension of the Veteran's right knee is limited to 45 degrees, 30 degrees, 20 degrees, 15 degrees, 10 degrees, or 5 degrees. i. Report on any right knee functional loss due to pain and/or weakness that causes disability beyond that reflected on range of motion measurements. 4. Then, review the medical examination report(s) to ensure it/they adequately respond(s) to the above instructions. If the report(s) is/are deficient in this regard, return the case to the appropriate VA examiner for further review and discussion. 5. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the issue of entitlement to an increased disability rating for status post right femur fracture with residual right knee pain. If the benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. 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 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 2014). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).