Citation Nr: 1604271 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 11-28 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a rating in excess of 30 percent for residuals of a foreign body in the left arm with ulnar neuropathy of the left upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1960 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2015. A transcript of that hearing is of record. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous evaluation where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist also includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also 38 C.F.R. § 3.326(a) (2015). The most recent VA examination as to the ulnar neuropathy of the left upper extremity was conducted in September 2013. The Veteran asserted in his hearing testimony that his disability had worsened since that examination, and stated that he has more flare-ups where he experiences muscle contractions or spasms. Accordingly, a new examination is warranted to determine the current extent and severity of the Veteran's service-connected ulnar neuropathy of the left upper extremity. 38 C.F.R. § 3.159(c)(4)(i); See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if the record before the Board contains insufficient medical information). The claims folder should also be updated to include VA treatment records compiled from December 28, 2012 through August 13, 2014, and from December 10, 2015 to the present. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the VA Boston Healthcare System, to include the Jamaica Plain Division, dated from December 28, 2012 through August 13, 2014, and from December 10, 2015 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. 2. Thereafter, schedule the Veteran for a VA examination to ascertain the nature and severity of his service-connected ulnar neuropathy of the left upper extremity. The claims file must be made available to the examiner for review in connection with the examination. The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail. The examiner is asked to specify all nerves affected and the degree of lost or impaired function, to opine whether the nerve paralysis is complete or incomplete, and, if incomplete, to characterize it as mild, moderate, or severe in nature. The examiner is to discuss the Veteran's report of flare-ups, and the level of functional impairment associated with these flare-ups. 3. Once all of the above development has been completed, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ U. R. POWELL 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).