Citation Nr: 1127129 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 03-06 292 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUE Entitlement to a rating in excess of 30 percent for the service-connected postoperative residuals of a crush injury of the left foot (left foot disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to April 1985. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the RO. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in November 2003. This case was remanded by the Board of Veterans' Appeals (Board) in September 2004 to the RO for additional development of the record. The Board issued a decision in November 2006 denying the claim for increase. The Veteran subsequently appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In May 2007, the Court issued an Order granting the Secretary's Motion to vacate the decision and remand the case back to the Board. In October 2007, the Board remanded the case to the RO for actions in compliance with the Court's Order. After the issuance of the January 2010 Supplemental Statement of the Case, additional relevant evidence was associated with the claims folder. In February 2010, the Veteran provided the Board with a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2010). The case was remanded in March 2010 for additional development of the record. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran recently reported losing all nerve sensation in his foot. (See May 2011 Written Statement). This statement is indicative of a worsening since his last VA examination in May 2005. A VA examination of the foot, to include neurological findings, is necessary to determine whether the Veteran has actual loss of use of the foot. The VA Office of General Counsel has held that, while a lapse of time in and of itself does not necessarily require a re-examination in rating cases, a further examination is needed in instances where the veteran has reported a worsening in the disability since his last examination. See VAOPGCPREC 11-95 (Apr. 7, 1995). Therefore, additional development is warranted to obtain a new VA examination and to obtain the Veteran's most current VA medical records, pursuant to 38 C.F.R. §3.159(c)(2) (2010). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate action in order to obtain all outstanding records of evaluation and/or treatment of the Veteran by VA or any other health care provider. All records and/or responses received should be associated with the claims folder. 2. The RO then should schedule the Veteran for a VA examination to determine the current severity of his service-connected left foot disability. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests, including X-rays if indicated, should be accomplished. The examiner should specifically comment on the Veteran's current level of impairment due to his left foot disability, and identify all joint, muscular, and/or neurological symptomatology and opine as to whether the disability is consistent with actual loss of use of the left foot. Further, if degenerative arthritis is noted and loss of range of motion is evident in either the toes or the ankle, report the range of motion measurements for affected area(s), as well as indicate what would be the normal range of motion. Provide an objective characterization as to whether there is any pain, weakened movement, or premature or excess fatigability, and whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups or repetitive or prolonged tasks; (2) weakened movement; (3) fatigability; or (4) incoordination. If applicable, provide an objective characterization of the duration and severity of such exacerbations. Also describe and explain any neurological or muscular impairment, including whether there are objective clinical indications of stiffness, nerve or ligament damage, dislocation, and instability. If there is no pain, no limitation of motion and/or no limitation of function, etc., please indicate this, too. Please provide a copy of any radiology report and discuss the extent and etiology of any positive findings. 3. After completing the requested actions, and any additional notification and development deemed warranted, the RO should readjudicate the claim for increase in light of all the evidence of record. If any benefits sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2010). _________________________________________________ STEPHEN L. WILKINS 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).