Citation Nr: 1116162	
Decision Date: 04/26/11    Archive Date: 05/05/11

DOCKET NO.  09-30 238	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an increased rating for injury to left thigh and hamstring, currently evaluated as 10 percent disabling.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARINGS ON APPEAL

Appellant, C.R.


ATTORNEY FOR THE BOARD

J. N. Moats, Counsel

INTRODUCTION

The Veteran had active duty service from July 1983 to May 1986 and from October 1987 to January 1993.
 
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A notice of disagreement was received in August 2007, a statement of the case was issued in July 2008, and a substantive appeal was received in July 2009.  The Veteran testified as a personal RO hearing in October 2008 and at a Board hearing at the local RO in August 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 is seeking a rating in excess of 10 percent for his service-connected injury to the left thigh and hamstring.  Most recently, the Veteran was afforded a VA examination in July 2008.  However, at the RO and Board hearings, the Veteran described symptoms that appeared to be more severe than documented at this examination.  Further, it is unclear whether the July 2008 VA examiner reviewed the claims file in association with the examination.  While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination.  VAOPGCPREC 11-95 (1995).  Thus, based on the Veteran's hearing testimony, the Board finds that a new VA examination is necessary to determine the severity of the Veteran's service-connected injury to the left thigh and hamstring. 

Further, the most recent VA treatment records are from July 2009.  In light of the need to remand for a new VA examination, the RO should also obtain any further treatment records from July 2009 to the present.  

Accordingly, the case is REMANDED for the following actions:

1.  The RO should obtain any VA treatment records from July 2009 to the present. 

2.  Thereafter, the Veteran should be scheduled for an appropriate VA examination to determine the extent of his injury to his left thigh and hamstring.  The claims folder should be made available to the examiner for review.  The examiner should order any medically necessary tests.  Further, the examiner should address whether the Veteran's disability is considered moderate, moderately severe or severe pursuant to Diagnostic Code 5313.  See 38 U.S.C.A. §4.73.  With respect to the left hip and knee, the examiner should conduct range of motion testing and, to the extent possible, should indicate (in degrees) the point at which pain is elicited on range of motion testing.  The examiner should also offer an opinion as to the extent, if any, of additional functional loss due to incoordination, weakness and fatigue, including during flare-ups.  

3.  Thereafter, the issue on appeal should be
readjudicated.  The Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 

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. 2010).



_________________________________________________
ALAN S. PEEVY
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).