Citation Nr: 1330665 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 03-29 280A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating higher than 20 percent for residuals of a fractured right humerus. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION 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 Veteran had active service from January 1955 to April 1958. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In a July 2003 rating decision, the RO increased the rating for the right humerus to 20 percent, effective December 2001. Thereafter, jurisdiction of the case was transferred to the RO in Phoenix, Arizona. The Veteran requested a hearing before the Board. The requested hearing was conducted in April 2007 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In September 2007, the Board denied entitlement to a rating in excess of 20 percent for residuals of a fractured right humerus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2008, the Court issued an order that granted a Joint Motion for Remand (JMR), vacated the Board's September 2007 decision, and remanded the matter to the Board for action in compliance with the motion. In August 2009, the Board remanded the matter for additional development. In August 2010, the Board determined that a disability rating in excess of 20 percent was not warranted for residuals of a fractured right humerus. A separate 10 percent evaluation was granted for a right elbow strain with limitation of motion, and entitlement to TDIU was remanded back to the RO. Again, the Veteran appealed the Board's decision to the Court. In September 2011, the Court vacated the Board's August 2010 decision and remanded the matter to the Board. In April 2012, the Board remanded this issue to the RO to evaluate whether the Veteran was entitled to an increased rating on an extraschedular basis. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks an increased rating for his residuals of a right humerus fracture and entitlement to TDIU. He asserts his symptoms are more severe than what is represented by the current 20 percent rating and that he cannot work due to his disabilities. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board notes that the most recent VA examination for the Veteran's humerus disability was in January 2011, more than two years ago. The Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Furthermore, a review of the claims file reveals that there are no updated medical treatment records in the claims file or in Virtual VA. All updated treatment records should be obtained, and associated with the claims file. Finally, the Board notes that the Veteran has asserted that the medication he takes for his service-connected disabilities interferes with his ability to work. See January 2011 Form 21-8940. The Veteran is currently service-connected for residuals of a fracture of the right humerus and a right elbow strain with limitation of motion. The Veteran should be afforded a VA examination to determine whether his service-connected disabilities preclude him from performing substantially gainful employment. The Board notes that VA medical opinions were obtained regarding this issue in May 2011 and January 2012; however, these opinions are not based on updated medical evidence and do not discuss the impact the Veteran's service-connected disabilities have jointly on his ability to obtain and maintain gainful employment. Therefore, the Board finds that a new VA examination and medical opinion is necessary. Accordingly, the case is REMANDED for the following actions: (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. Obtain and associate with the claims file all updated treatment records. All efforts to obtain these records should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed. 2. Afford the Veteran a VA examination to determine the current level of severity of his service-connected disabilities - residuals of a fracture to the right humerus and right elbow strain with limitation of motion. Ask the examiner to discuss all findings in terms of 38 C.F.R. § 4.71a, Diagnostic Codes 5201 and 5206 (as applicable). The pertinent rating criteria must be provided to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. All pertinent symptomatology and findings should be reported in detail, including range of motion testing. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The examiner should comment on the functional limitations, if any, associated with the Veteran's service-connected elbow and humerus disabilities. The examiner should specifically note whether there is functional loss due to weakness, fatigability, incoordination, pain on movement or when the joint is used repeatedly over time. Of particular significance, the examiner should specify the degree at which pain begins to occur, and the point at which motion is impeded due to pain. The examiner should attempt to quantify the degree of additional impairment, if any, during flare-ups. The examiner also should evaluate and discuss the effect of all of the Veteran's service-connected disabilities, both individually and jointly, on the Veteran's employability. The examiner should list any side effects the Veteran has from the medications taken for his service-connected disabilities, and identify all side effects that affect his ability to obtain and/or retain a substantially gainful occupation. An opinion should be provided as to whether it is at least as likely as not (i.e., 50 percent probability) that service-connected disabilities prevent the Veteran from obtaining or retaining a substantially gainful occupation. Specifically, the examiner should describe what types of employment activities would be limited due to the Veteran's service-connected disabilities and any associated disorder, bearing in mind his entire social-medical history. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. 4. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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).