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).