Citation Nr: 1519646 Decision Date: 05/07/15 Archive Date: 05/19/15 DOCKET NO. 13-28 110A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, granting service connection for neuropathy of the right lower extremity, effective as of December 16, 2010, and assigning an evaluation of 10 percent. The August 2011 rating decision also granted service connection for neuropathy of the left lower extremity, effective as of March 3, 2011, and assigned a 10 percent evaluation, and denied service connection for right foot pain with bone spur. However, the Veteran's August 2011 notice of disagreement clearly limited his appeal to neuropathy of the right lower extremity and right foot pain with bone spur. As such, the assigned rating for left lower extremity neuropathy is not on appeal. As statement of the case was subsequently issued in September 2013 regarding the evaluation of his right lower extremity neuropathy and the issue of service connection for right foot pain with bone spur. In October 2013, VA received a formal appeal to the Board (VA Form 9) from the Veteran. The Veteran indicated that after reading the statement of the case, he was only appealing the issue of neurological abnormalities of "both lower extremities." As such, the issue of entitlement to service connection for a bone spur of the right foot is not currently before the Board. In September 2014, the Veteran testified at a video conference hearing before the undersigned. A written transcript of this hearing has been associated with the Veteran's electronic claims file (Virtual VA). Additional electronic records are also associated with the Veterans Benefits Management System (VBMS). The Board recognizes that testimony was provided regarding all three of the issues discussed in the preceding paragraphs. However, the undersigned clearly notified the Veteran that the acceptance of testimony on these issues is not an acceptance of jurisdiction and that a determination of jurisdiction is conditioned upon a review of the evidence of record. The Veteran's testimony regarding the issues of entitlement to a higher evaluation for neuropathy of the left lower extremity and entitlement to service connection for a bone spur of the right foot in September 2014 indicates the Veteran's intent to again raise these issues. However, they have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to an initial evaluation in excess of 10 percent for his service-connected neuropathy of the right lower extremity. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that the Veteran was last afforded a VA examination regarding the severity of his neuropathy of the right lower extremity in June 2011. However, during this September 2014 hearing, the Veteran testified that his disability was currently resulting in more pain. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). In the present case, it has been 4 years since the Veteran's last examination. In light of his assertions of a worsening of his disability, he should be scheduled for a new examination to determine the current level of severity of his service-connected neuropathy of the right lower extremity. In addition, the most recent record of VA medical treatment associated with the claims file. Records prepared since this time should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain records of VA medical treatment prepared since September 2013 and associate them with the Veteran's electronic record. 2. Schedule the Veteran for a VA examination before an appropriate physician to determine the current level of severity of his service-connected neuropathy of the right lower extremity. The Veteran's claims file must be made available for review by the physician assigned to this examination and the examination report should reflect that the file was in fact reviewed. The examiner is asked to perform all indicated tests and studies and identify the nerves associated with the Veteran's neuropathy of the right lower extremity. For all nerves involved, the examiner should describe in detail the symptomatology and impairment resulting from the Veteran's neuropathy. The Veteran's lay assertions regarding the severity of his disability must be fully considered and discussed. 3. The RO/AMC should then carefully review the medical examination report obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the RO/AMC should return the case to the examiner for completion of the inquiry. 4. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the RO/AMC should provide the Veteran and his representative a supplemental statement of the case as to the issue on appeal, and afford him a reasonable period of time within which to respond thereto. 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 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 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).