Citation Nr: 1332343	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  12-21 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an increased rating for a left elbow disability currently rated as 20 percent disabling.  


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

A. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from March 1943 to March 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which continued a 10 percent rating for a service-connected left elbow disability.  An August 2013 rating decision determined that failure to grant an increased rating of 20 percent for the left elbow disability was clear and unmistakable error and increased the rating for the left elbow to 20 percent, effective June 15, 2011, the date of receipt of the claim for an increased rating.  However, that was not a full grant of the benefit sought and the issue of increase remains on appeal.  AB. v. Brown, 6 Vet. App. 35 (1993).

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 in Washington, D.C.  


REMAND

A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim can be reached.

The Veteran was last afforded a VA examination to assess his service-connected left elbow disability in July 2011, more than two years ago.  VA's duty to assist includes the conduct of a thorough and comprehensive medical examination.  Robinette v. Brown, 8 Vet. App. 69 (1995).  When available evidence is too old for an adequate rating of the Veteran's current condition, VA's duty to assist includes providing a new examination.  Weggenmann v. Brown, 5 Vet. App. 281 (1993).  The Veteran's last VA examination is stale.  Moreover, the Veteran submitted a statement received in October 2011 and indicated that the strength in his left elbow was reduced by half and he was unable to perform full extension of his elbow.  That indicates that the Veteran's service-connected disability may have worsened since the date of the last examination.  To properly adjudicate the increased rating claim, another examination should be scheduled.

Accordingly, the case is REMANDED for the following action:

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.  Schedule the Veteran for a VA examination of the left elbow with the appropriate specialist.  The examiner should review the claims file and should note that review in the report.  The examiner should report the ranges of motion in degrees.  The examiner should report any additional functional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain.  The examiner should express the additional functional limitation in terms of the degree of additional limitation of motion.

2.  Then, readjudicate the claim.  If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

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



_________________________________________________
HARVEY P. ROBERTS
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).