Citation Nr: 1327221 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 13-07 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for residuals of a cold injury of the left foot. 2. Entitlement to an evaluation in excess of 20 percent for residuals of a cold injury of the right foot. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The Veteran had active service from November 1947 to November 1949 and from August 1950 to March 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the appellant's claims. See 38 C.F.R. § 19.9 (2012). The Veteran's residuals of cold injuries of the right and left feet were last evaluated at a VA examination in December 2010, more than two and a half years ago. Although the Veteran's hands were evaluated at a VA examination in June 2011, his lower limbs were not examined. In a June 2013 informal hearing presentation, the Veteran's representative asserted that the VA examination should be considered out of date and inadequate to determine the current severity of the conditions. In a February 2013 substantive appeal, the Veteran stated that he suffered a myriad of symptoms to his legs. He stated that a physician told him he should be at 100 percent disability. As the Veteran's statements indicate his service-connected feet disabilities may have worsened and the most recent VA examination was more than two and a half years ago, the Board finds that the December 2010 VA examination is not sufficiently contemporaneous for purposes of evaluating the nature and severity of the Veteran's disabilities. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary prior to appellate adjudication of this issue. In the February 2013 substantive appeal, the Veteran indicated that he believed he was entitled to a 100 percent disability rating. The evidence of record reflects that the Veteran is retired and not working. See June 2011 VA examination. TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has asserted that he is entitled to a 100 percent rating and he is not working, the Board finds that the issue of entitlement to a TDIU has been raised by the record. The VA treatment records in the file only date to September 2012. The Veteran has received treatment at VA throughout the period on appeal. Consequently, the Board requests the Veteran's complete VA treatment records from February 2013 to present. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran a comprehensive notice regarding the issue of entitlement to a TDIU. 2. Obtain all of the Veteran's VA treatment records from September 2012 to present. If no records are available, the claims folder must indicate this fact. 3. After any records obtained have been associated with the claims file, schedule the Veteran for an examination to determine the current severity and symptoms of his service-connected residuals of a cold injury of the left and right feet. Forward the claims file to the examiner for review. The examiner should perform all appropriate testing. The examiner should indicate whether the Veteran has arthralgia or other pain, numbness or cold sensitivity, tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). The examiner should note whether the Veteran has been diagnosed with any residual effects of cold injury, such as Raynaud's phenomenon or muscle atrophy. The VA examiner should provide an opinion as to whether it is at least as likely s not that the Veteran is unemployable as a result of his service-connected disabilities. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 4. Thereafter, readjudicate the issues on appeal of entitlement to service connection for residuals of cold injury of the left and right feet and entitlement to a TDIU. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MILO H. HAWLEY 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).