Citation Nr: 0809729 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 06-15 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a cutting injury to an unspecified finger. 2. Entitlement to service connection for a right shoulder disorder. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for left shoulder injury residuals. 4. Entitlement to service connection for a left shoulder disability. 5. Entitlement to an increased rating for dorsal spine strain, due to trauma, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran had active duty from September 1966 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions of February and October 2005 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2007, the veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of this hearing has been associated with the record. During October 2007 hearing, the veteran appears to have indicated a desire to seek an increased rating for his service-connected right hand shell fragment wound. See page 13 of transcript. As this issue is undeveloped and uncertified for appellate review, it is referred to the RO for clarification and any other necessary action. This decision, in part, addresses only the question of whether certain evidence submitted is new and material (concerning the claim for entitlement to service connection for left shoulder injury residuals). Because the claim is reopened, and development not yet complete, the issue of service connection for a left shoulder disability is REMANDED to the RO via the Appeals Management Center in Washington, DC. Consistent with the instructions below, VA will notify the veteran of any further action that is required on his part. FINDINGS OF FACT 1. In October 2007, prior to promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the veteran that a withdrawal of his appeal concerning the issue of entitlement to service connection for a cutting injury to an unspecified finger was requested. 2. The veteran is not shown to be suffering from a right shoulder disorder that is due to any event or incident of his service, and arthritis of the right shoulder was not manifested to a compensable degree in the first year following the veteran's separation from active duty. 3. Service connection for left shoulder injury residuals was most recently finally denied in an October 1994 rating decision, which essentially found that the evidence reviewed was inadequate to establish that a diagnosis of a left shoulder disorder existed. The veteran did not appeal that decision. 4. Evidence received since the October 1994 RO decision is new, as it relates to an unestablished fact necessary to substantiate the claim in that it essentially includes a diagnosis of a left shoulder disorder, and it raises a reasonable possibility of substantiating the claim. 5. The veteran's service-connected dorsal spine sprain, due to trauma has been manifested by pain, tenderness and clinical findings of abnormal kyphosis; there is no evidence of neurological impairment or of intervertebral disc syndrome. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the appellant concerning entitlement to service connection for a cutting injury to an unspecified finger have been met. 38 U.S.C.A. § 7105(b)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. A right shoulder disorder was not incurred or aggravated by active service, and arthritis of the right shoulder may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 3. An October 1994 rating decision, denying entitlement to service connection for left shoulder injury residuals, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 4. As new and material evidence has been received, the criteria for reopening the claim for service connection for left shoulder injury residuals are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 5. The criteria for a 20 percent rating, but no higher, for dorsal spine strain, due to trauma, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.10, 4.20, 4.27, 4.40, 4.45, 4.126, 4.71a, Diagnostic Codes 5299 and 5237 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in November 2004 correspondence and a May 2005 statement of the case (SOC) of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The November 2004 correspondence adequately notified the veteran of, concerning the instant new and material claim, both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The SOC informed the veteran of the specific rating criteria which would provide a basis for an increased rating. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. The November 2004 correspondence and the SOC both informed the claimant of the need to submit all pertinent evidence in his possession. The claims were subsequently readjudicated in a May 2007 supplemental SOC (SSOC). March 2006 correspondence also provided adequate notice of how disability ratings and effective dates are assigned. While the appellant may not have received full notice prior to the initial decision, after notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims. The claimant was provided the opportunity to present pertinent evidence, and his testimony and statements and those of his supervisor and representative, made on his behalf, have been associated with the record. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. Review of the above-mentioned documents mailed to the veteran in November 2004 (correspondence) and May 2005 (SOC) reflect that he was afforded appropriate notice by means of these communications. Moreover, in this regard, the veteran provided testimony at a Board hearing and submitted a statement from his supervisor addressing the severity of his dorsal spine disability and the effects it has on his daily life and employment. His testimony and the statement from his supervisor indicates an awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher rating. Significantly, the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." Id. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notices of the RO, the claimant has been notified and made aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims decided herein. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters being decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Factual Background The veteran claims, in essence, that he injured both of his shoulders in Vietnam as a result of his involvement in a swimming accident in September 1967. See pages four, five, and six of the October 2007 hearing transcript (transcript). It was also reported that the veteran sustained an injury to his cervical and dorsal spine segments in an in-service vehicle accident. See page seven of transcript. He added that his service-connected dorsal spine disability was mostly manifested by pain. See page 15 of the transcript. While a January 1968 medical record includes a reference to a past history of an acromioclavicular separation on the left side in January 1967, review of the veteran's service treatment records does not include any clinical findings reflective of complaints of and/or diagnoses concerning either the veteran's left or right shoulder. The veteran is shown to have suffered a fractured thoracic spine in a December 1967 jeep accident. An August 1968 separation examination report shows that clinical evaluation of the veteran's shoulders was normal. The report of an October 1968 VA examination, conducted shortly after the veteran's September 1968 service separation, shows that the veteran complained of left shoulder pain. The veteran gave a history of an in-service left shoulder injury, at which time he was told he had incurred an acromioclavicular separation. Examination revealed no acromioclavicular separation. The diagnoses were post-traumatic residual, left shoulder, with acromioclavicular separation, healed; and chronic strain and sprain of the cervical and dorsal spines, with mild neuritis. The veteran submitted a claim seeking service connection for a left shoulder disorder in March 1983. An April 1983 VA X-ray report of the left shoulder showed no fractures or other bony abnormalities. Service connection for a left shoulder disorder, characterized as "injury to left shoulder" was denied by the RO in May 1983. At that time the RO essentially found that the evidence of record did not establish that a left shoulder disorder was currently manifested. The veteran did not appeal. Therefore, the May 1983 RO decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). The report of a VA X-ray examination dated in February 1992 shows that evaluation of the veteran's bilateral shoulders was unremarkable. No acute or chronic pathologic findings of the bone, joint, or soft tissue was demonstrated as to either of the veteran's shoulders. He sought to reopen his left shoulder claim in September 1994. See VA Form 21-4138. Service connection for a left shoulder disorder was again denied by the RO in October 1994. At that time the RO, in finding that new and material evidence had not been submitted to reopen the claim, again essentially found that the evidence of record did not contain findings reflective of a left shoulder disorder. The veteran did not appeal. Therefore, the October 1994 RO decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. The veteran sought to reopen his service connection claim for his left shoulder in September 2004. See VA Form 21-4138. A September 2004 VA outpatient treatment record includes a notation to right acromioclavicular arthritis, with an onset of July 2000; a VA X-ray report dated in July 2000 confirms this radiographic finding. The X-ray report noted that the veteran had provided a history of right shoulder problems dating back to Vietnam. A VA X-ray report, also dated in September 2004, includes a diagnosis of mild to moderate "AC" [acromioclavicular] arthropathy. The veteran was afforded a VA spine examination in November 2004. The veteran complained of daily dorsal spine pain; he denied complaints of radiating pain. He also complained of flare ups with over use, but of no additional activity restrictions. Examination revealed some tenderness in the thoracic region, with increased kyphosis. Range of motion testing showed bilateral lateral bending from 0 to 35 degrees, with pain on extreme left lateral bending. Extension was from 0 to 35 degrees with pain, flexion was from 0 to 95 degrees, and bilateral rotation was from 0 to 70 degrees. No diminution was reflected on repetitive testing. Negative straight leg raising testing was also reported, and the examiner commented that no DeLuca criteria was noted. The veteran also complained of a circumferential decreased sensation in his right lower extremity. The examiner opined that the veteran had spondylosis. The examiner also commented that it was unlikely that the veteran's reported decreased sensation in his right leg was a true radiculopathy, especially considering that his problem seemed to be related to the veteran's thoracic spine. An addendum note indicated that no additional limitation of pain, fatigue, weakness, or lack of endurance was exhibited following repetitive use. X-ray findings were noted to demonstrate anterior wedge deformity at T6 and T8 of undetermined age, and mild spondylosis of the lower thoracic spine. Service connection for a left shoulder disorder was again denied by the RO in February 2005. At that time the RO, in finding that new and material evidence had not been submitted to reopen the claim. The veteran perfected a timely appeal to this decision. A VA spine examination was conducted in November 2005. Review of the examination report shows that the veteran complained of daily midline pain. He complained of flare ups with intercourse or exertion. He denied any shooting pain. Examination revealed no thoracic spine tenderness. Range of motion testing showed forward flexion from 0 to 100 degrees, with pain from 80 to 100 degrees. Extension from 0 to 30 degrees was reported, with pain from 20 to 30 degrees. Lateral flexion and lateral rotation were both from 0 to 40 degrees, with pain at 40 degrees. Negative straight leg raising testing was reported, and the examiner commented that the veteran had no weakness, incoordination, or fatigability with repetitive movement. Symmetrical reflexes were reported, together with no decreased sensation. Thoracic spondylosis status post injury in Vietnam was diagnosed. A June 2006 private medical record shows complaints by the veteran of bilateral shoulder pain. X-ray examination was noted to reveal normal glenohumeral joints. Arthrosis of the bilateral acrominoclavicular joints was diagnosed, worse on the right. Bilateral shoulder impingement and bilateral acrominoclavicular joint arthrosis were diagnosed. The report of a VA spine examination afforded the veteran in March 2007 shows no apparent changes since the November 2004 X-ray findings noting anterior wedge deformity at T6 and T8 of undetermined age, and mild spondylosis of the lower thoracic spine. The veteran continued to complain of daily pain; he denied impairment of daily activities. Examination revealed a slightly exaggerated kyphosis, and range of motion findings reflective of 90 degrees of flexion with pain beyond 45 degrees, 30 degrees of extension with pain beyond 20 degrees, 30 degrees of bilateral lateral bending with pain in each direction beyond 20 degrees, and 45 degrees of bilateral rotation without pain. Strength and sensory testing was normal. Negative straight leg testing was noted. Neither spasm nor apparent tenderness was observed. The supplied diagnosis was lower thoracic spine spondylosis, apparently unchanged since VA examinations conducted in 2004 and 2005. No incapacitating episodes were noted, and no neurological abnormalities were present. Also, no DeLuca criteria, added the examiner, were currently manifested. An addendum indicated that no additional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use was observed on examination. As noted, the veteran provided testimony at a October 2007 videoconference hearing conducted by the undersigned. Review of the transcript shows that the veteran claims, in essence, that he injured both of his shoulders in Vietnam as a result of his involvement in a swimming accident in September 1967. See pages four, five, and six of the transcript. He also reported incurring a left acrominoclavicular separation in September 1967. It was also reported that the veteran sustained an injury to his cervical and dorsal spine segments in an in-service vehicle accident. See page seven of the transcript. He added that his service-connected dorsal spine disability was mostly manifested by pain. See pages 14 and 15 of the transcript. During the course of the hearing the veteran expressed his desire to withdraw his service connection claim for a cutting injury of an unspecified finger. See page 13 of the transcript. He also provided a VA Form 21-4138, signed on October 9, 2007 [the same day the hearing was conducted] which indicated "I withdraw my appeal as it pertains to service connection for a cutting injury to an unspecified finger." Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007) Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain enumerated disorders, to include arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year following separation from active duty. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Generally, a final RO decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a) "new and material evidence" is evidence that raises a reasonable possibility of substantiating the claim. Material evidence is evidence, which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The veteran was granted service connection for dorsal spine sprain, secondary to trauma, in an August 1969 rating decision and, pursuant to Diagnostic Codes 5299-5295, a 10 percent rating was assigned. This disability evaluation has remained in effect since that time. Diagnostic Code 5299 is used to identify musculoskeletal system disabilities that are not specifically listed in the Rating Schedule, but are rated by analogy to similar disabilities under the Rating Schedule. See 38 C.F.R. §§ 4.20, 4.27. The veteran did not appeal this decision. An October 1994 rating decision found that a rating in excess of 10 percent was not warranted. The veteran later sought an increased rating for his service- connected dorsal spine disability in September 2004. A February 2005 rating decision continued the 10 percent rating then in effect; in so doing, Diagnostic Codes 5299 and 5237 were utilized. The Board observes that no specific provision pertaining to limitation of motion or dorsal (thoracic) sprain exists under the applicable criteria. However, the rating criteria currently in effect recognize that the thoracic and lumbar segments move in unison. See 38 C.F.R. § 4.71a, Plate V (2007). Therefore, it is appropriate to rate the veteran's disability under Diagnostic Code 5237. Under this code, a 50 percent evaluation is assigned for when there is unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine; a 20 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and a 10 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or with muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2007). The pertinent rating criteria now define normal range of motion for the various spinal segments for VA compensation purposes. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, Plate V, and Note (2). The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the Rating Schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Still, when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Under 38 C.F.R. §§ 4.40 and 4.45, the rating for an orthopedic disorder should reflect functional limitation which is due to pain, as supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). When a question arises as to which of two ratings under a particular code applies, the higher evaluation is assigned if the disability picture more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. §§ 3.102, 4.3. Analysis Service Connection Cutting Injury to an Unspecified Finger Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. See also 38 C.F.R. § 20.204. In the course of the veteran's October 2007 videoconference hearing, the appellant informed the undersigned of his desire to withdraw his appeal as to the issue of entitlement to service connection for a cutting injury to an unspecified finger. He also provided a VA Form 21-4138, signed on October 9, 2007 [the same day the hearing was conducted] which indicated "I withdraw my appeal as it pertains to service connection for a cutting injury to an unspecified finger." Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appealed matter and it is dismissed. Right Shoulder Disorder The veteran contends that he has a right shoulder disorder which is attributable to injuries sustained during his military service. The veteran's service treatment records do not show that the veteran either complained of, or was diagnosed as having, a right shoulder disorder during his active military service. Post service treatment for the appellant's right shoulder is not shown until 2000, at which time VA X-ray findings revealed right acromioclavicular arthritis. A June 2006 private medical record later provided a diagnosis of arthrosis of the right shoulder. Neither medical record relates the supplied right shoulder disorder to the veteran's military service. Consequently, direct service connection, i.e., on the basis that chronic disability became manifested in service and has persisted since, is not warranted. While right shoulder arthritis was diagnosed in 2000, that diagnosis comes well after the veteran's 1968 separation from active duty. As such, presumptive service connection for knee arthritis is not for consideration. There is also no post-service continuity of complaints or symptoms pertaining to any right shoulder disability. Without evidence of a chronic right shoulder disability in service, arthritis of the right shoulder in the first post- service year, and with no evidence of a nexus between any current right shoulder disability and service, service connection for such disability is not warranted. As such, the benefit sought on appeal is denied. Left Shoulder Injury Residuals The RO last denied entitlement to service connection for left shoulder injury residuals in October 1994, essentially finding that such a disorder was not currently manifested. That rating decision was not appealed and it is final. 38 U.S.C.A. § 7105. Some of the evidence added to the record since the October 1994 RO decision is new, it tends to relate to an unestablished fact necessary to substantiate the claim, and it raises a reasonable possibility of substantiating the claim. Since the previous denial was premised, at least in part, on a finding that a sufficient medically-provided diagnosis of a left shoulder disorder had not been obtained, the new evidence showing that healed left acromioclavicular separation (1968) and left shoulder impingement and acrominoclavicular joint arthrosis (2006) have been diagnosed since October 1994 constitutes new and material evidence. These diagnoses, therefore, tend to relate, at least in part, to an unestablished fact necessary to substantiate the claim. Hence, the additional evidence received is new and material. Therefore, the claim of entitlement to service connection for left shoulder injury residuals is reopened. Increased Rating Dorsal Spine Strain To warrant a rating in excess of 10 percent under the current criteria for rating diseases and injuries of the spine, the evidence must show that the dorsal (i.e., thoracic) spine disorder is productive of range of motion findings indicative of forward flexion of the thoracolumbar spine which is greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Review of the above-discussed range of motion findings set out as part of VA orthopedic examinations afforded the veteran in November 2004, November 2005, and March 2007, the Board finds that based on these documented findings the veteran is not entitled to a rating in excess of 10 percent for his service-connected dorsal spine disability. However, in the course of his November 2004 examination the presence of kyphosis was reported, and in addition, at his March 2007 examination the examiner noted the presence of slightly exaggerated kyphosis. The Board finds that, with consideration of DeLuca factors, the veteran's dorsal spine disability more nearly approximates the criteria for assignment of a 20 percent evaluation. As to entitlement to an even higher rating, the evidence shows that even with consideration of pain and the description of complaints of tenderness and flare-ups in the course of the VA examination reports discussed above, the veteran does not demonstrate any limitation of forward flexion of the thoracolumbar spine remotely equivalent to 30 degrees or less. Also, favorable ankylosis of the entire thoracolumbar spine has clearly not been demonstrated. In the Board's opinion, even when functional impairment due to pain is considered, given the absence of any DeLuca criteria, such as fatigue, weakness, lack of endurance following repetitive use, or incoordination (see above-discussed VA orthopedic examination report findings from November 2004, November 2005, and March 2007), the evidence on file shows that the limitation in the veteran's range of dorsal spine motion does not even remotely approximate the criteria for an evaluation higher than 20 percent. Also, in the absence of any clinical evidence of a neurological impairment (see, e.g., the comment made by the VA examiner in March 2007 that no neurological abnormalities were present) or of intervertebral disc syndrome, the Board finds that the evidence does not support assignment of a separate evaluation for neurological symptomatology or of an evaluation in excess of 20 percent under the criteria for rating intervertebral disc syndrome. Accordingly, the veteran is entitled to assignment of a 20 percent rating, but no more, for his dorsal spine sprain, due to trauma. 38 C.F.R. § 4.3. In reaching these decisions, the Board considered the doctrine of reasonable doubt; however, except to the extent that the benefits sought on appeal are granted in part for the veteran's service connection claim for left shoulder injury residuals and for an increased rating for his service- connected dorsal spine disorder, the preponderance of the evidence is against the veteran's claims. Therefore, the doctrine is not otherwise for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right shoulder disorder is denied. The appeal as to the issue of entitlement to service connection for a cutting injury to an unspecified finger is dismissed. New and material evidence having been received, the claim of entitlement to service connection for left shoulder injury residuals is reopened, to this extent, the appeal is granted. Entitlement to a 20 percent rating for dorsal spine sprain is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The reopening of the claim for service connection for left shoulder injury residuals triggers certain duty to assist provisions of the VCAA, which must be met prior to de novo review of the claim. The duty to assist includes obtaining relevant medical reports, providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. As noted above, the veteran has been diagnosed with healed left acromioclavicular separation, left shoulder impingement and acrominoclavicular joint arthrosis. None of these diagnoses, however, have been specifically related to the veteran's military service. Also the Board notes that the veteran was involved in motor vehicle accidents during service in December 1967 and post service in January 1994. The Board is of the opinion that the 1968 VA examination findings of a healed post-traumatic left shoulder acromioclavicular separation to be very probative. Also, the veteran's in-service report of an acromioclavicular separation is an "innocent" record, in that it was not offered to secure VA benefits. As such, whether the veteran currently has a left shoulder disability due to his military service is a medical question best resolved by a competent medical opinion. Given the record, such an opinion would be helpful in resolving the claim remaining on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the RO should arrange for the veteran to undergo a VA orthopedic examination, by a physician, at an appropriate VA medical facility. The veteran is hereby advised that failure to report to any scheduled examination, without good cause, shall result in a denial of the reopened claim. See 38 C.F.R. § 3.655(b) (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding pertinent medical records. In this regard, the Board notes that the claims file contains selected VA medical records. On remand, the RO should obtain and associate with the claims file all outstanding VA medical records from the Charleston, South Carolina VA Medical Center (VAMC). The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent VA treatment records, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The RO should also undertake appropriate action to obtain and associate with the claims file records from private healthcare providers. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Further, to ensure that all due process requirements are met, the RO should also give the veteran another opportunity to present information and/or evidence pertinent to the claim remaining on appeal. The RO's notice letter to the veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the veteran to submit all evidence in his possession. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection remaining on appeal. The RO's adjudication of the claim remaining on appeal should include consideration of all evidence added to the record since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should obtain from the Charleston, South Carolina VAMC all of the veteran's outstanding pertinent records of evaluation and/or treatment, since his separation from service in September 1968 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records or responses received should be associated with the claims file. 2. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for service connection for a left shoulder disability that is not currently of record. The RO should specifically request that the veteran furnish the appropriate authorization to enable it to obtain and associate with the claims file all records, not already associated with the claims file, of the veteran's treatment and/or evaluation by Drs. Charles Bounds, Keith D. Merrill and C. W. Wimberley, Jr. from September 1968 to the present. The RO should invite the veteran to submit all pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. The RO's letter should also clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify him and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, or a reasonable time period for the veteran's response has expired, the RO should arrange for the veteran to undergo a VA orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file must be made available to the physician designated to examine the veteran, and the examination report should include discussion of the veteran's documented medical history and assertions. All indicated tests and studies (including X-rays) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner should identify all current disability(ies) affecting the left shoulder. With respect to each diagnosed disability, the examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability is the result of injury or disease incurred or aggravated during active duty, to include as a result of a swimming accident in September 1967, or some post-service event (such as a motor vehicle accident in January 1994). The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file copies of any notices of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim for service connection for a left shoulder disability. If the veteran fails, without good cause, to report to the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, in adjudicating the claim, the RO should consider the claim in light of all pertinent evidence and legal authority. If the claim remains denied, the RO must furnish to the veteran and his representative an appropriate SSOC which includes a summary of any additional evidence submitted and applicable laws and regulations, along with clear reasons and bases for all determinations, and afford them an appropriate time period for response before the claim is returned to the Board for further appellate review. The purpose of this remand is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he and his representative have the right to submit additional evidence and argument on the matter the Board have remanded to the RO. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs