Citation Nr: 1339152 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-28 751 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming THE ISSUE Entitlement to an initial rating in excess of 30 percent for the service-connected residuals, partial bicep rupture (dominant). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a March 2011 rating decision issued by the RO. The Board notes that the Veteran's attorney has written several letters stating that he has not received a Statement of the Case (SOC) in response to the Veteran's disagreement with an August 2011 rating decision concerning the same issue that is addressed herein. However, that decision was issued by the RO as part of the appellate process and the issue of the appropriate rating for the Veteran's partial rupture of the right bicep is already on appeal here. The appeal is being remanded to the RO. VA will notify the Veteran if further action is required on his part. REMAND The RO granted service connection for residuals of a partial bicep rupture of his right arm in a March 2011 rating decision. A 10 percent rating was initially assigned for this disability. Subsequently, the rating was increased to 30 percent, effective the date of the receipt of the Veteran's claim. The Veteran contends that he is entitled to a still higher rating. The Veteran was examined by VA in December 2010. In his April 2011 Notice of Disagreement and his October 2011 Substantive Appeal, the Veteran's attorney contended that the VA examination was inadequate and did not reflect the current severity of the disability. Moreover, nearly three years have passed since the December 2010 examination. Given the assertion of the Veteran's attorney that the Veteran's right biceps disability got worse after the VA examination, he should be provided with a more contemporaneous examination of his residuals of a partial biceps tear of his right arm. The record also reflects that the Veteran submitted many private treatment records in connection with various other claims after the Statement of the Case was issued. However, none of these records dealt with his right bicep disability. Given the other development required, the Veteran should also be asked to identify the source of any current treatment for his right bicep disability and to provide appropriate releases to enable VA to obtain these records. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he identify all treatment he has received for his right bicep disability and provide appropriate releases to him to enable VA to obtain these records. To the extent possible, copies of all identified treatment records should be obtained and associated with the claims file. If records are identified, but cannot be obtained, the RO should document the attempts that were made to obtain the records and should notify the Veteran of VA's inability to obtain the records. The Veteran also should be notified that he may submit medical evidence and treatment records in support of his claim. 2. The RO then should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected right biceps disability. The examiner should review the claims file in conjunction with the examination. All symptoms and functional effects of the service-connected right biceps disability should be fully documented in the report of examination. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ STEPHEN L. WILKINS 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) (2013).