Citation Nr: 1332501 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-27 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for right knee torn meniscus (right knee disability). 2. Entitlement to a compensable disability rating for stress fractures of the right 2nd and 4th toes. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from August 1994 to October 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which the denied the increased ratings. The issue of entitlement to service connection for hypertension, to include on the basis of aggravation, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The appeal is 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 Board finds that further development is necessary regarding the Veteran's increased rating claims. In the September 2013 appellate brief, the Veteran's representative indicated that the Veteran's right knee disability and residuals of stress fractures to the right 2nd and 4th toes have worsened since his last VA examination. The last VA examination was performed in October 2007. Additionally, the Veteran has reported to treating professionals that he has experienced increased symptoms in his right knee. The Court has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green, 1 Vet. App. at 124. In light of the Veteran's and his representative's contentions, the above orthopedic claims must be remanded in order to afford the Veteran a VA examination to determine the current severity of these disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the current nature and severity of his right knee disability and any disability of the right 2nd and 4th toes. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. As to any range of motion testing conducted, the examiner is required to use a goniometer for such testing and to note that a goniometer was used. The claims file, and any relevant records in electronic format, must be provided to the examiner for review in conjunction with the examination and the examiner should note that it has been reviewed. The examiner should discuss all symptoms and findings necessary to adequately rate the Veteran under the appropriate diagnostic codes. As to the Veteran's right foot complaints, the examiner is asked to determine, if possible, whether his right foot injury is mild, moderate, moderately severe, or severe in nature. Any and all opinions must be accompanied by a complete rationale. 2. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should review the record and adjudicate the Veteran's increased rating claims. If the benefits sought on appeal remain denied, in whole or in part, the Veteran should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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). _________________________________________________ MICHAEL LANE 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).