Citation Nr: 1323509 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-01 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for a right elbow disability. 2. Entitlement to an initial compensable rating for a residual scar of the right elbow. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Virtual VA paperless claims processing system includes a brief filed by the Veteran's representative in June 2013. Other documents are either duplicative of the evidence of record or are not 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 Veteran was last afforded a VA examination in October 2007, while he was still in service. Subsequently, in December 2009 he stated that his scar was very painful and motion in his right elbow was debilitating. In June 2013, the Veteran's representative contended that the October 2007 VAX is over 5 years old and does not accurately portray the current severity of the Veteran's service-connected disabilities. Therefore a reexamination is needed to determine whether these disabilities have worsened since the October 2007 VA examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein 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). The Board notes that the criteria for rating scars were amended effective October 23, 2008 and apply to all claims received by VA on or after October 23, 2008. On January 20, 2012, but effective retroactively to October 23, 2008, 38 C.F.R. § 4.118 was revised to clarify that as to claims filed before October 23, 2008, the old criteria will apply to applications received by VA before that date. However, a veteran whose scars were rated by VA under a prior version of diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 CFR 4.118, may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. As the Veteran has not requested that his service-connected right elbow scar be evaluated under the new criteria for rating scars, the criteria prior to October 23, 2008 are applicable. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right elbow disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should identify whether the Veteran's right extremity is his major or minor extremity and should comment on the severity of the Veteran's service-connected right elbow disability and report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should provide the range of motion of the right elbow in degrees and state whether there is any form of ankylosis. The examiner should address any functional loss due to pain or painful motion (supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion) as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. Any additional functional loss should be expressed in terms of additional limitation of motion. The examiner should also address whether there is additional loss of motion associated with flare-ups or on repetitive use. 2. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected residual scar of the right elbow. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should indicate the area of the scar in square inches or square centimeters, and should address whether it is deep and causes limited motion; whether it is superficial, unstable, painful on examination, and causes limitation of function of the right elbow. 3. When the development requested has been completed, the case should again be reviewed on the basis of the additional evidence and readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ H.N. SCHWARTZ 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).