Citation Nr: 1321671 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 10-01 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for a cervical sprain, currently evaluated at 20 percent disabling. 2. Entitlement to an increased rating for a right ankle sprain, currently evaluated at 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from August 1988 to August 1992 and from February 1993 to March 1995. This appeal to the Board of Veterans' Appeals (Board) is from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in Nashville, Tennessee. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Board finds that additional development is required before the Veteran's claim may be readjudicated on its merits. Although the Board sincerely regrets the additional delay in deciding the claim that will result from this remand, it is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration. Where the record does not adequately reveal the current state of disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). An examination too remote for rating purposes cannot be considered "contemporaneous." See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Additionally, VA generally has a duty to provide additional examination when the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination. VAOPGCPREC 11-95 (Apr. 7, 1995). The Veteran was granted service connection for a cervical sprain and right ankle sprain on March 16, 1995. These disabilities were rated at 20 percent disabling and 10 percent disabling, respectively. He filed a claim for an increased rating for both disabilities in October 2006. He was afforded a VA examination in April 2007. The RO denied increases for both disabilities in a June 2007 rating decision. The evidence suggests his conditions have worsened since this decision. In his February 2008 Notice of Disagreement, the Veteran noted that his "mobility and suffering [have] gotten worse." In addition to having to take medication to treat the pain, he stated his "ankle will turn all the time," and that "more frequent headaches and a stiffer neck" are signs his disabilities have worsened. Additionally, a February 2009 VA treatment record indicates a VA orthopedist suggested a "special boot" to address the worsening pain in his right ankle. The Veteran is competent to discuss observable symptoms such as pain and limited mobility. Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Veteran's statements regarding his symptoms are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Further, his representative noted in the June 2013 Informal Hearing Presentation that his ongoing treatment for both disabilities, as indicated in the VA treatment records, suggests a worsening of his conditions. The Veteran's representative argues that this, together with the time that has passed since his last VA examination, merits a new examination. For the foregoing reasons, the Board agrees and is remanding for a new examination to determine the current severity of the Veteran's service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Determine whether the Veteran has received any further evaluation or treatment for residuals of his service-connected disabilities from a private health care provider. If he has, attempt to obtain the records, including providing him with the proper release forms for records from private health care providers. If the requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and he must be notified in accordance with 38 C.F.R. § 3.159(c) (2012). 2. Attempt to obtain any outstanding VA treatment records that may exist, including records from the Carl Vinson VA Medical Center, dated since October 2009. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2012). 3. Thereafter, schedule the Veteran for a VA examination of his cervical spine and right ankle. The claims file should be made available to and reviewed by the examiner. All indicated tests, including x-rays if warranted, should be completed. The examiner must identify and describe in detail all residuals attributable to the Veteran's service-connected cervical strain and right ankle sprain. The examiner must provide the ranges of motion of the Veteran's cervical spine and right ankle in degrees. Repetitive motion testing should be conducted and the examiner should note, in degrees, any decrease of range of motion after repetitive use. The examiner should also note whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the cervical spine and right ankle are used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Then, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 5. Finally, readjudicate the Veteran's claims. If the claims remain denied, in whole or in part, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. 2012). _________________________________________________ D. MARTZ AMES 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) (2012).