Citation Nr: 1602580 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 09-48 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased disability rating (or evaluation) in excess of 20 percent for bilateral spondylosis with spondylolisthesis and degenerative disc disease at L5-S1 (lumbar spine disability). 2. Entitlement to an increased (compensable) disability rating for sarcoma of the left medial arm (left arm sarcoma disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1982 to October 2004. This matter comes to the Board of Veterans' Appeals (Board) from a February 2008 rating decision by the Department of Veterans Affairs VA Regional Office (RO) in Houston, Texas. The Board has reviewed both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to ensure a total review of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Increased Rating for Lumbar Spine and Left Arm Sarcoma Disabilities Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2015). Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95; Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran is seeking higher rating for the service-connected lumbar spine and left arm sarcoma disabilities. The Veteran's authorized representative asserted that VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated and the available evidence is too old to adequately evaluate the disability. The authorized representative indicated that the most recent VA examinations for the lumbar spine and left arm sarcoma disabilities are over 36 and 66 months old, respectively, and advanced that the VA examinations are too old to adequately evaluate the disabilities on appeal. See December 2015 appellant's brief. In an August 2014 statement, the Veteran asserted that he experienced progressive pain, stiffness, soreness, and loss of flexibility in the left arm and around the sarcoma surgery scar. The Veteran also stated that he had loss of skin tissue and blood flow, as well as muscle loss, which caused paresthesia in the left arm at night. Based on the foregoing, and after a liberal construction of the representative's statement, because the Veteran, through the authorized representative, is asserting that the service-connected lumbar spine disability has increased in severity since the December 2012 VA examination, and the left arm sarcoma disability has increased in severity since the June 2010 VA examination, the Board finds that a remand for the appropriate updated VA examination(s) is warranted. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey, 6 Vet. App. at 381 (holding that the Board should have ordered a contemporaneous examination of a veteran because an exam was too remote in time to adequately support a decision on appeal for an increased rating). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for the relevant VA examination(s) in order to help ascertain the current extent of the service-connected lumbar spine and left arm sarcoma disabilities. The relevant documents in the claims folder should be made available for review in connection with this examination. All indicated tests and studies should be performed. 2. Thereafter, the issues of increased rating for the service-connected lumbar spine and left arm sarcoma disabilities should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and representative should be provided with a supplemental statement of the case (SSOC). The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2015). 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). _________________________________________________ J. PARKER 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) (2015).