Citation Nr: 21015009 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-12 464 DATE: March 16, 2021 REMANDED Entitlement to an initial compensable rating for left humerus status post open reduction and internal fixation surgery is remanded. Entitlement to an initial compensable rating for right ankle status post open reduction and internal fixation surgery is remanded. Entitlement to an initial compensable rating for scar, right ankle surgery and left humerus surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2008 to January 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021 the Veteran testified at a virtual hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. The Board notes that the last VA examination for service-connected left humerus, right ankle and scar disabilities took place in November 2013. Notably, at his February 2021 hearing, the Veteran testified that his service-connected left humerus, right ankle and scar disabilities had worsened since his last VA examination in November 2013 as he had limited range of motion, pain and stiffness at the heads of the screws where the bones were repaired. The Veteran also testified that there was now tough scar tissue built up inside his scars. Given that the Veteran indicated that his service-connected left humerus, right ankle and scar disabilities had worsened and he appears to be receiving continued treatment for these disabilities, the Board is of the opinion that new VA examinations would be probative. Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, to ensure that the record reflects the current severity of the Veteran’s service-connected left humerus, right ankle and scar disabilities, contemporaneous examinations are warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous”). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for VA examination before an appropriate physician to determine the current level of severity of his service-connected left humerus, right ankle and scar disabilities. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination reports should reflect review of these items. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran’s service-connected left humerus, right ankle and scar disabilities. The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected left humerus, right ankle and scar disabilities on his ability to work. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.