Citation Nr: 1322182	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  11-03 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial disability rating in excess of 20 percent for status post intramedullary nailing, distal tibia spiral fracture, left leg, to include scars and left ankle strain. 


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel










INTRODUCTION

The Veteran served on active duty from July 2005 to November 2005 and February 2006 to May 2007 with additional inactive duty for training (INACDUTRA) in June 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that, in pertinent part, assigned a 10 percent disability evaluation for status post intramedullary nailing, distal tibia spiral fracture, left leg, after granting service connection for the same.  By a rating action dated in January 2011, the 10 percent rating assigned for status post intramedullary nailing, distal tibia spiral fracture, left leg, was increased to 20 percent, effective from June 8, 2009 (date of claim).  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action on his part is required.


REMAND

A review of the Veteran's electronic claims file reveals that he was afforded a VA-QTC to evaluate his left lower extremity in April 2013.  A copy of this examination report has been associated with the electronic claims file.  New VA treatment records have been associated with the electronic claims file.  However, the RO failed to readjudicate the Veteran's claim following the addition of this new evidence in a supplemental statement of the case.  Although this new evidence is pertinent to the Veteran's claim, there is no supplemental statement of the case to indicate that it has been reviewed by the Agency of Original Jurisdiction (AOJ).  In these circumstances, the law requires that the Board return the appeal to the AOJ for initial consideration of the new evidence.  See Disabled American Veterans, et al. v. Secretary of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003); 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1304(c) (2012).
Accordingly, the case is REMANDED for the following actions:

1.  Review the all evidence added to the Veteran's electronic and paper claims file since the February 2011 statement of the case and complete any additional development deemed necessary.

2.  After completing the above action, the Veteran's claim of entitlement to an increased initial rating for status post intramedullary nailing, distal tibia spiral fracture, left leg, to include scars and left ankle strain, should be readjudicated.  If the claims remains denied, a supplemental statement of the case should be provided to the Veteran.  After he has had an adequate opportunity to respond, the case should be returned to the Board for further appellate review.

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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012).


_________________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court.  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).