Citation Nr: 1806211 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-12 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals of a left hip fracture. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Journet Shaw, Counsel INTRODUCTION The Veteran served in the Missouri Army National Guard from September 2007 to May 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, granted service connection for residuals of a left hip fracture and assigned a 10 percent evaluation, effective March 9, 2010. The Veteran appealed for a higher initial evaluation. In January 2015 and May 2017, the Board, in pertinent part, remanded the issue on appeal for additional development. As discussed below, there has not been substantial compliance with the May 2017 remand instructions, so the matter must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. In its May 2017 remand, the Board noted that VA apparently did not have the Veteran's current mailing as correspondence sent to her was being returned as undeliverable. The Board instructed the RO to contact the Veteran and her representative to confirm her current mailing address and then to provide the Veteran with all outstanding notice for her claim, including the January 2016 supplemental statement of the case (SSOC). After confirming the Veteran's current mailing address, the record does not include any documentation reflecting that VA has sent the Veteran all outstanding notice for her claim, including the January 2016 SSOC. Accordingly, another remand is required to send all relevant correspondence to her current mailing address in compliance with May 2017 Board instruction. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, in light of a recent case, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board finds that the June 2017 VA examination provided to evaluate the Veteran's service-connected left hip disability is inadequate for rating purposes. In Sharp, the Court of Appeals for Veterans Claims (Court) determined that it was not sufficient for an examiner to provide that a requested opinion regarding whether the Veteran had additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995), was not possible without resorting to speculation based on the fact that the examination was not performed during a flare. The Court found that an examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. In this case, the June 2017 VA examiner determined that the examiner was unable to describe functional loss in terms of range of motion, because the examination was not being conducted during a flare-up. No further explanation was provided. Based on the findings in Sharp, a remand is required to obtain a new VA examination of the Veteran's service-connected left hip disability. Accordingly, the case is REMANDED for the following actions: 1. Obtain all of the outstanding treatment records that are not currently of record for the Veteran's residuals of a left hip fracture. 2. Provide the Veteran with all outstanding notice for her claim, including the January 2016 SSOC, at her current mailing address. 3. After completing the above, to the extent possible, schedule the Veteran for a VA examination to determine the current severity of her service-connected residuals of a left hip fracture by an appropriately qualified examiner. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should provide current findings regarding all symptoms associated with the service-connected left hip disability and should opine as to its severity. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. The examiner should comment on the extent of any functional impairment caused by the Veteran's service-connected left hip disability, to include in an occupational setting and in performing ordinary, daily activities. 4. After ensuring compliance with the above, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and her representative should be provided with a SSOC. Then, return the case to the Board. 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. 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. §§ 5109B, 7112 (2012). _________________________________________________ LESLEY A. REIN 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).