Citation Nr: 0814527	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  05-28 904	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to a rating in excess of 10 percent for 
osteoarthritis of the thoracic spine. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Ann-Monique Clark, Associate Counsel


INTRODUCTION

The veteran had active service from December 1950 until 
December 1954. 

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from a rating decision of the Department of 
Veterans Affairs (VA), Regional Office (RO) in St. 
Petersburg, Florida.

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if further action is required.


REMAND

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

The veteran has essentially indicated in a statement dated 
April 22, 2008, submitted by his representative, that his 
service-connected osteoarthritis of the thoracic spine has 
worsened since his last VA examination, which was conducted 
in August 2004.  

VA's General Counsel has indicated that when a claimant 
asserts 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) (while the 
Board is not required to direct a new examination simply 
because of the passage of time, VA's General Counsel has 
indicated that a new examination is appropriate when the 
claimant asserts that the disability in question has 
undergone an increase in severity since the time of the last 
examination).  

Under these circumstances, the veteran should be afforded a 
VA examination for the purpose of determining the current 
severity of the service-connected disability on appeal.  
Caffrey v. Brown, 6 Vet. App. 377 (1994).    

Accordingly, the case is REMANDED for the following actions:

1.  Obtain VA outpatient treatment 
records from the Pasco OPC for the period 
from April 2005 to the present.

2. The veteran should be afforded an 
examination to determine the severity of 
his service-connected osteoarthritis of 
the thoracic spine.  The claims folder 
must be made available to the examiner in 
conjunction with the examination.  Any 
testing deemed necessary should be 
performed.

The examiner should obtain a detailed 
clinical history from the veteran.  All 
pertinent pathology found on examination 
should be noted in the report of the 
evaluation.  The examiner should provide 
ranges of motion of the thoracolumbar 
spine, describe symptoms exhibited by the 
veteran to include any ankylosis, gait, 
scoliosis, muscle spasms, guarding, 
localized tenderness, neurological and 
orthopedic involvement, limitation of 
motion, pain on use, weakness, excess 
fatigability, and/or incoordination.  

The examiner should also assess whether 
the veteran exhibits signs and symptoms of 
intervertebral disc syndrome, and address 
the number of incapacitating episodes, if 
any, experienced by the veteran, giving 
the estimate in the number of weeks (total 
duration) over the past twelve months.  

3.  The RO should then readjudicate the 
claim for an increased rating for the 
veteran's service-connected 
osteoarthritis of the thoracic spine.  If 
the benefit sought is not granted, the 
veteran and his representative should be 
furnished a supplemental statement of the 
case and be afforded an opportunity to 
respond.  The case should then be 
returned to the Board for appellate 
review.

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 Supp. 2007).



_________________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).