Citation Nr: 18145089 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-26 739 DATE: October 26, 2018 REMANDED Entitlement to an initial compensable evaluation for service connected scar of the right hip is remanded. Entitlement to an evaluation higher than 10 percent for service-connected right femur fracture residuals is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the U.S. Navy from July 1980 to February 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from March 2014 and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). While the issue was pending on appeal, a September 2017 rating decision increased the evaluation of the Veteran’s right femur fracture residuals from noncompensable to 10 percent for the entire appeal period. The Veteran continues to seek a higher evaluation, thus the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The September 2017 decision rendered moot the issue of entitlement to a 10 percent evaluation for multiple noncompensable service-connected disabilities, and that issue is no longer in appellate status. 1. Entitlement to an initial compensable evaluation for service connected surgical scar of the right hip. This issue is remanded to obtain a VA examination because the Veteran has shown good cause for his failure to attend a previously scheduled VA examination. 38 C.F.R. § 3.655 (2018). VA scheduled an examination in August 2017 to ascertain the severity of the Veteran’s right hip scar. The examination request lists an incorrect address for the Veteran, and in October 2017 the Veteran wrote that he was never notified about the August 2017 examination. The Veteran and his attorney have requested that this issue be remanded so that the Veteran may be afforded another opportunity to attend a VA examination. On remand, care should be taken to send the notice to the Veteran’s correct mailing address. 2. Entitlement to an evaluation higher than 10 percent for service-connected right femur fracture residuals. This issue is remanded to obtain a VA examination that assesses the current severity of the Veteran’s right femur fracture residuals. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Here, the Veteran has asserted his service-connected disability is worse than when he was last examined in February 2014. In October 2017 the Veteran wrote that he experienced pain and discomfort with prolonged standing and during inclement weather, and was unable to stand for long periods. In August 2018, the Veteran’s attorney wrote that the Veteran’s October 2017 lay testimony should be considered as evidence that his right femur condition had worsened since he was last evaluated in February 2014. The Veteran, by way of his attorney, argued that the evidence in the record did not adequately reveal the current state of his service-connected fracture of the right femur, or the additional functional loss during flares of symptoms. For these reasons, remand is required to obtain a contemporaneous VA examination. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected right hip scar. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected residuals of a right femur fracture. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. (a.) The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the right hip in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner must also conduct the same testing on the right knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. (b.) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. For reference, the Veteran’s correct mailing address is reported on his October 2017 statement in support of claim. 6. Then, after any other indicated development is completed, the Veteran’s claims should be readjudicated. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before returning the case to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 38 U.S.C. §§ 5109B, 7112 (2012). K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel