Citation Nr: 1109455 Decision Date: 03/10/11 Archive Date: 03/24/11 DOCKET NO. 09-27 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for the Veteran's service-connected residuals of a right Achilles tendon rupture, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to February 1991. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida, which increased the rating for the Veteran's service-connected residuals of a right Achilles tendon rupture to 10 percent, retroactively effective from July 19, 2007, the date of the Veteran's increased rating claim. The Veteran has continued to appeal, requesting an even higher rating. AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating the Veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). In support of his claim, the Veteran testified at a videoconference hearing at the RO's office in St. Petersburg, Florida, held before the undersigned Acting Veterans Law Judge in January 2011. A transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this matter, a remand is required before the claim can be properly adjudicated. The Veteran's last VA examination to assess the current severity of his service-connected residuals of a right Achilles tendon rupture was in August 2007. At his January 2011 Board hearing, the Veteran testified that his disability has worsened since his last VA examination. Thus, the Board finds that the August 2007 examination is inadequate to assess the Veteran's current level of severity, since this examination is over three years old. A new VA examination is required to assess the current level of severity of the Veteran's service-connected residuals of a right Achilles tendon rupture. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of a claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See also, VAOPGCPREC 11-95 (April 7, 1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following actions: 1. Provide a VA examination to the Veteran in order to evaluate the severity of his service-connected residuals of a right Achilles tendon rupture. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Ask the examiner to discuss all findings in terms of all the applicable diagnostic codes, particularly DC 5284. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for rating under all alternate criteria. All indicated studies should be accomplished, and all findings should be reported in detail. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND at whatever location it is scheduled, and to cooperate in the development of his case. The consequences of his failure to report for a VA examination may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2010). 2. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case, and afford the appropriate period of time within which to respond thereto. The Veteran has 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. 2010). _________________________________________________ Michael J. Skaltsounis Acting 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) (2010).