Citation Nr: 1007172	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  07-34 553	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUE

Entitlement to an increased evaluation for degenerative joint 
disease of the right elbow, currently rated 20 percent 
disabling.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

S. Lipstein, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to 
September 1970.  

This matter comes to the Board of Veterans' Appeals (Board) 
from January 2007 and February 2007 rating decisions of a 
Department of Veterans Affairs (VA) Regional Office (RO).  A 
notice of disagreement was received in February 2007, a 
statement of the case was issued in October 2007, and a 
substantive appeal was received in October 2007.  The Veteran 
testified at a hearing before the Board in January 2010.  

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 Veteran stated at the January 2010 Board hearing that his 
right elbow disability has interfered with his employment.  
After advising the Veteran of the provisions of 38 C.F.R. 
§ 3.321(b)(1) and the requirements for establishing 
entitlement to an extra-schedular evaluation for degenerative 
joint disease of the right elbow, the RO should consider 
whether the Veteran's case should be forwarded to the 
Director of the Compensation and Pension Service for extra-
schedular consideration under the provisions of 38 C.F.R. 
§ 3.321(b)(1).

The Board notes that the Veteran stated at the January 2010 
Board hearing that the right elbow disability has worsened 
since the most recent VA examination.  The 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).  See Olsen v. Principi, 3 
Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 
Vet. App. 629, 632 (1992) (holding that, where the veteran 
claims that a disability is worse than when originally rated, 
and the available evidence is too old to adequately evaluate 
the current state of the condition, VA must provide a new 
examination).  Thus, the Board is of the opinion that the 
Veteran should be afforded an additional VA examination.  

Accordingly, the case is REMANDED for the following actions:

1.  Inform the Veteran of the provisions 
of 38 C.F.R. § 3.321(b)(1) and the 
requirements for establishing entitlement 
to an extra-schedular evaluation for 
degenerative joint disease of the right 
elbow.  Specifically, the Veteran should 
be advised that he can submit or identify 
evidence in conjunction for his claim for 
increased rating for degenerative joint 
disease of the right elbow, which tends 
to show marked interference with 
employment and/or frequent 
hospitalization due to this disability.  
He should further be advised that such 
evidence can include documentation 
demonstrating the amount of time he has 
lost from work specifically as a result 
of the degenerative joint disease of the 
right elbow.

2.  Schedule the Veteran for a VA 
examination to ascertain the current 
severity of his right elbow disability.  
The claims file must be made available to 
the examiner for review.  All examination 
findings should be clearly reported to 
allow for application of VA rating 
criteria for a right elbow disability.  

3.  Then, readjudicate the claim, to 
include consideration of an 
extraschedular rating.  If the claim 
remains denied, issue a supplemental 
statement of the case and allow the 
Veteran and his representative an 
appropriate period of time for response 
before returning the case to the Board.

The Veteran and his representative have the right to submit 
additional evidence and argument on the matter 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. 2009).



_________________________________________________
V. L. JORDAN
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) (2009).