Citation Nr: 18143290
Decision Date: 10/18/18	Archive Date: 10/18/18

DOCKET NO. 15-29 645
DATE:	October 18, 2018
REMANDED
Entitlement to increased rating for left hip disability, status post ilium graft excision, currently rated 30 percent, is remanded.
REASONS FOR REMAND
The Veteran has appealed the denial of an increased rating for a service connected hip disability.  However, the Board finds that further evidentiary development is necessary before the Board can adjudicate the claim on appeal.  Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the claim.
Following the issuance of an August 2016 rating decision, following a June 2015 statement of the case,  and prior to certification of the appeal to the Board, new evidence pertinent to the Veteran’s hip disability was added to the record that was not considered by the agency of original jurisdiction (AOJ) in any subsequent supplemental statement of the case.  The new evidence consists of VA and private treatment records, and lay statements addressing the nature and severity of the hip disability.
Pertinent evidence must be reviewed first at the AOJ a supplemental statement of the case must be issued.  38 U.S.C. § 7104(a); 38 C.F.R. § 19.31(b)(1); Disabled Am. Veterans v. Sec’y. of Veterans Admin., 327 F.3d 1339 (Fed. Cir. 2003).
When evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be issued as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue on appeal.  38 C.F.R. § 19.37(a).
Therefore, the Board must remand the claim so that the AOJ can consider the newly associated evidence in the first instance.  On remand, a supplemental statement of the case that considers the additional evidence of record received since the August 2016 rating decision must be issued.
The record indicates that the Veteran had been scheduled for an August 2016 VA examination regarding the increased rating claim, but did not appear for the examination as scheduled or offer good cause for the failure to appear.  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member.  38 C.F.R. § 3.655(a).  Thus, any evidence sought by that examination was not obtained.  While VA has a duty to assist the Veteran in the development of a claim, the Veteran has a duty to cooperate with VA.  Wood v. Derwinski, 1 Vet. App. 190 (1991).  However, the file does not contain evidence showing the Veteran was timely notified of the date, time, and location of the scheduled examination.
The matter is REMANDED for the following action:
1. Obtain all VA medical records not already of record.
2. After obtaining the appropriate authorization, obtain all private treatment records identified by the Veteran that are not already of record.
3. Schedule the Veteran for a VA examination of the left hip disability.  Document in the claims file notification to the Veteran of the date, time, and location of the hearing.  The examiner must review the claims file and should note that review in the report.  The examiner should provide ranges of left and right hip motion for weight-bearing, nonweight-bearing, active, and passive motion.  The examiner should state whether there is any additional loss of function due to painful motion, excess motion, fatigability, weakened motion, incoordination, or on flare up.  The examiner should state whether ankylosis of the left hip is shown.

 
Harvey P. Roberts
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Gillian A. Flynn, Associate Counsel