Citation Nr: 1802397 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-37 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a compensable rating for a healed mid-distal right femur shaft fracture. 2. Entitlement to a compensable rating for a healed mid-distal left femur shaft fracture. REPRESENTATION Appellant represented by: Atty. Kathy A. Lieberman ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from November 1943 to March 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburgh, Florida. Jurisdiction now resides at the RO in Buffalo, New York (hereinafter Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including the Content Legacy Manager and Veterans Benefit Management System (VBMS) claims files, using Caseflow Reader. All records are now in these electronic systems. The Board notes that the Veteran has submitted a notice of disagreement concerning entitlement to increased ratings for degenerative arthritis of the left and right knees; degenerative arthritis of the left and right hip; degenerative joint disease of the left and right shoulder; a low back disorder; and entitlement to an extraschedular rating for service-connected disorders. As those claims are still being adjudicated by the AOJ, the Board declines to take jurisdiction at this time. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In May 2017, the AOJ scheduled a VA examination regarding the Veteran's increased rating claim for healed mid-distal right and left femur shaft fractures. The claims file indicates that the Veteran did not show up for the scheduled examination. In the Veteran's July 2017 substantive appeal, the Veteran's representative indicated that the Veteran was unaware the examination had been scheduled but was willing to report to an examination. The representative further noted that the Veteran is currently 92 years old and lives alone, and needed sufficient notice of the examination date to both the Veteran and his representative in order to arrange transportation to the examination. The Board finds that good cause has been shown for failure to report to the VA examination, and the Veteran has shown willingness to report to rescheduled examinations. See 38 C.F.R. § 3.655(a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). A remand is necessary to further develop these issues and provide the Veteran another opportunity to attend a VA examination. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain VA treatment records since April 2017. 2. Thereafter, schedule the Veteran for a VA examination to address the current severity of healed mid-distal right and left femur shaft fractures. Please provide both the Veteran and his representative adequate notice to enable them to arrange transportation to the examination. The examiner must review the Veteran's Legacy Content Manager and VBMS files. The examiner should indicate in the opinion that all pertinent records were reviewed. All clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should determine whether either femur exhibits nonunion of the shaft or anatomical neck, with loose motion; nonunion without loose motion, and weightbearing preserved with the aid of a brace; fracture of the surgical neck with a false joint; or malunion with a marked, moderate, or slight knee or hip disability. Additionally, in order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. The examiner should also address the severity (i.e., favorable or unfavorable) and location of any ankylosis, and note any functional limitation caused by the healed mid-distal right and left femur shaft fractures. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing on both hips and knees in the following areas: * Active motion; * Passive motion; * Weight-bearing; and * Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. 3. After completing the actions detailed above, readjudicate the claims. If any benefit is not granted to Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).