Citation NR: 9600868 Decision Date: 01/23/96 Archive Date: 02/07/96 DOCKET NO. 94-02 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to restoration of a 10 percent rating for service-connected bursitis of the right shoulder. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Associate Counsel INTRODUCTION The veteran served on active duty from May 1984 to December 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 1990 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which reduced the disability rating for the veteran's service-connected bursitis of right shoulder, from 10 percent to a noncompensable evaluation. REMAND In a March 1988 rating decision, the RO awarded the veteran service connection for bursitis of his right shoulder, based on the veteran’s service medical records which showed a diagnosis of right shoulder bursitis in service in 1986. A 10 percent disability evaluation was assigned for this disorder, based on the findings of a January 1988 VA examination, which showed that the veteran had full range of motion of his right shoulder, with slight discomfort on palpation of his right subdeltoid bursa, and complaints of intermittent aching and pain in the right shoulder. On a March 1990 VA examination, the veteran was found to have full range of motion of his right shoulder, with no looseness of the humeral head within the glenoid fossa, no undue laxity of the capsular ligaments of the right shoulder, and normal X-ray findings. The examination report showed subjective reports from the veteran of aching and discomfort in his right shoulder, with aggravation when performing certain movements. In an April 1990 rating decision, the RO determined that the veteran’s service-connected bursitis of the right shoulder had improved, and a reduction of the 10 percent rating to a noncompensable evaluation was proposed. He was notified of this proposed reduction in correspondence dated in April 1990, and submitted a timely notice of disagreement, but did not timely submit evidence within 60 days after the date of the notification letter. The rating reduction went into effect in July 1990. Since that time, the veteran has submitted a June 1990 statement from his physician, Luigi DeSantis, M.D., who reported that he had examined the veteran’s right shoulder in June 1990 and a Yergason test performed on this joint was positive, which indicated a laxity of the transverse humeral ligament. Thereafter, a subsequent VA examination conducted in June 1991 did not include evaluation of the veteran’s right shoulder, and private and VA medical treatment records received by the RO make no mention of the right shoulder. In July 1994 arguments to the Board, the veteran’s representative contended that the evidentiary record in this case is neither current nor adequate for the Board to base an informed opinion on the issue of evaluating the veteran’s right shoulder disorder. It was requested that the case be remanded to the RO for a VA compensation examination addressing this issue. The Board is in agreement with the representative, and will remand the case for a current VA examination and an updating of the evidence. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 19.9 (1994); Littke v. Derwinski, 1 Vet.App. 90 (1990); Green v. Derwinski, 1 Vet.App. 121 (1991); Murincsak v. Derwinski, 2 Vet.App. 363, 371 (1992); VanMeter v. Brown, 4 Vet.App. 477 (1993). In view of the foregoing, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he provide a list of the names and addresses of all medical care providers, both VA and private, who treated him for bursitis of the right shoulder since his treatment by his private physician, Dr. DeSantis, in June 1990. After securing permission for the release of these records (where necessary), the RO should attempt to obtain these records in accordance with the provisions of 38 C.F.R. § 3.159 (1994). 2. After the above records have been obtained and associated with the claims folder, the veteran should be provided with a VA orthopedic examination to evaluate the extent of functional loss and impairment imposed on his right shoulder by his service-connected bursitis. All indicated tests, including range of motion testing, measured in degrees, and X-ray study, must be performed. The examiner should indicate whether the shoulder impairment is manifested by malunion, nonunion with or without loose movement or dislocation. The examiner should also indicate whether the shoulder impairment is manifested by recurrent dislocation, limitation of motion of the arm at the shoulder level, midway between the side and the shoulder level, or to 25 degrees from the side. The claims folder must be made available to the examining physician for review before the examination. Thereafter, the RO should review the claim. If the claim is denied, the veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond. Then the case should be returned to the Board. The Board intimates no opinion as to the ultimate outcome of this case. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994). - 2 -