Citation Nr: 1754852 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-15 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating for status post left femur fracture rated as 10 percent disabling (left femur disability). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from August 1956 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In the March 2017 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran limited his appeal to the above issue. In May 2017, the Veteran withdrew his video-conference hearing request. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's left femur disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2017). Therefore, the Board finds that a remand is necessary to provide the Veteran with a new VA examination that takes into account the United States Court of Appeals for Veterans Claims (Court) recent holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (holding that VA must consider the range of motion of a joint in both active and passive motion, weight-bearing, and non weight-bearing situations when rating a disability based on lost motion). Specifically, a VA examination is needed to obtain range of motion testing of the left knee and hip in both active and passive motion, weight-bearing, and non weight-bearing situations as well as a comparison of these test results to the right knee and hip. Id; Also see Correia v. McDonald, 28 Vet. App. 158 (2016). While the appeal is in remand status, the AOJ should obtain and associate with the claims file any outstanding treatment records. See 38 U.S.C.A. § 5103A(b) (West 2014). Lastly, the Board notes that voluminous medical evidence was added to the claims file since the February 2017 statement of the case (SOC). Therefore, while the appeal is in remand status the AOJ should issue a supplemental statement of the case (SSOC) that includes citation to all the evidence added to the record since February 2017 SOC and not just since this remand. See 38 C.F.R. § 19.31 (2017) (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Accordingly, the appeal is REMANDED to the AOJ for the following actions: 1. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 2. Associate with the claims file all of the Veteran's post-May 2017 treatment records from the Wilmington VA Medical Center. 3. Schedule the Veteran for an examination to determine the severity of his left femur disability. The record should be made available to and reviewed by the examiner. The examiner is to identify all left femur pathology found to be present. In addition, the examiner should thereafter provide VA with the following information in accordance with the Court's holding in Sharp: A. Range of Motion Studies: (i) the examiner must test the range of motion of the left knee (i.e., flexion and extension) and left hip (i.e., extension, flexion, and abduction) in active motion, passive motion, weight-bearing, and nonweight-bearing and compare these test results to the range of motions of the right knee and hip in active motion, passive motion, weight-bearing, and nonweight-bearing; (ii) to the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion of the left knee and hip (i.e., the extent of the Veteran's pain-free motion), to specifically include if his pain was not ameliorated by his medication regimen. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria); (iii) and in providing the requested opinions regarding the range of motion, the examiner must also comment on any reports of flare-ups to include describing, if possible, any additional degrees of limited motion during these flare-ups. B. Other Findings: (iv) The examiner should also report on the severity of any other left knee and hip disability caused by malunion of the femur. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 4. Then, after conducting any further development deemed warranted, adjudicate the claim. Such adjudication must consider the Veteran's pain or other limitation of function. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The adjudication should also consider whether staged ratings are needed. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If any benefit sought on appeal remains denied, furnish the Veteran a SSOC that includes citation to all evidence added to the record since the February 2017 SOC. The Veteran should be given an appropriate opportunity for response before returning the appeal to the Board. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2017).