Citation Nr: 1806279 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 06-25 060A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 20 percent for residuals of a stress fracture to the left proximal femur, to include degenerative arthritis in the left hip joint. REPRESENTATION Veteran represented by: Sherri Stone, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1983 to December 1983. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In December 2013 and September 2017, the Veteran testified at video hearings before the undersigned. Transcripts of both hearings are of record. In a March 2014 remand, the Board referred the Veteran's increased rating claim for extraschedular consideration, after which the RO was instructed to re-adjudicate the Veteran's claim. In an April 2014 administrative decision, the Veteran was awarded an extraschedular rating of 20 percent. By correspondence dated April 2008, July 2008, March 2014, and April 2014, the Veteran withdrew his claim of service connection for hepatitis C, a claim that was also addressed in the March 2014 remand. In October 2017, the RO denied the Veteran's claim for TDIU, and a notice of disagreement was filed on behalf of the Veteran as to this claim and the rating for his recently service-connected a psychiatric disorder later that same month. Although the RO has not yet issued a statement of the case as to this matter, given the relative recency of the notice of disagreement, the Board will not assume jurisdiction over this matter at this time for the purpose of ordering the issuance of a statement of the case. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND A remand is required so that a new VA examination can be conducted. There are two reasons that a new examination is required. The first reason has to do with non-compliance with prior remand instructions. As noted by Veteran's counsel at the September 2017 hearing, in June 2011, the Board remanded the Veteran's claim for an "orthopedic/neurological examination, by an appropriate specialist." In January 2012, a VA hip examination was conducted by a nurse practitioner. A nurse practitioner does not constitute "an appropriate specialist." A new examination is required. The second reason has to do with the fact that the Veteran's most recent VA hip examination was completed five years ago, in January 2012. At the September 2017 hearing, the Veteran credibly testified that his hip condition has worsened. Since the record does not reflect a current examination that describes the Veteran's symptomatology, a new examination is required. See 38 C.F.R. § 3.327(a) ("Generally, reexaminations will be required if it is likely that . . . there been a material change in a disability . . . ."). In addition, in light of the apparent misplacement of a prior bone scan by VA in 2007 or 2008, an appropriate examiner should also address whether a bone scan should be accomplished to better assess the severity of the Veteran's left hip disorder. VA treatment records to August 23, 2017, have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from August 24, 2017, to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder all records of the Veteran's VA treatment from August 24, 2017, to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, have a medical doctor provide an examination and a medical opinion regarding the nature and severity of the Veteran's service-connected left hip disorder. All indicated studies and tests should be conducted, including a bone scan, if deemed appropriate. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. Tests of joint movement against varying resistance should be conducted. The examiner should determine whether the left hip disorder is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also indicate whether there is any form of ankylosis or neurological impairment associated with the Veteran's service-connected left hip disorder. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. Finally, the VA examiner should test the range of motion in active and passive motion and with and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the testing is not necessary in this case, he or she should clearly explain why that is so. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. 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). _________________________________________________ Michael J. Skaltsounis 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) (2017).