Citation Nr: 0813890 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 93-22 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for recurrent and chronic dislocation of the left shoulder, currently assigned a 20 percent disability evaluation. 2. Entitlement to an increased evaluation for recurrent and chronic dislocation of the right shoulder, currently assigned a 30 percent disability evaluation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. A hearing was held on December 12, 2007, in St. Petersburg, Florida, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board also notes that the veteran testified at the hearing that he had numbness in his left and right arms and that he was unemployable due to his service-connected right and left shoulder disabilities. It is unclear as to whether the veteran intended to file a claim for service connection for a neurological disability of the upper extremities or for a total evaluation based on individual unemployability due to service-connected disabilities (TDIU). However, those matters are not currently before the Board because they have not been prepared for appellate review. Accordingly, those matters are referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reason for remand: To provide the veteran with proper notice, to obtain additional treatment records, and to afford him a VA examination. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). During the pendency of the appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held that 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. 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. However, in this case, the Board notes that the veteran has not been adequately provided such notice, and thus, the case must also be remanded for proper notice pursuant to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In addition, it appears that there may be additional treatment records not associated with the claims file. In this regard, the Board notes that the veteran testified at his December 2007 hearing before the Board that he underwent reconstructive surgery on his shoulder in December 2007. However, the claims file does not contain such treatment records. In fact, the evidence of record does not include any treatment records dated after May 2007. Such records may prove to be relevant and probative. Therefore, the RO should attempt to obtain and associate with the claims file any and all treatment records pertaining to the veteran's shoulders. The Board also notes that the veteran was afforded VA examinations in September 2004 and May 2007 in connection with his claims for an increased evaluation for his service- connected right and left shoulder disabilities. However, at a December 2007 hearing before the Board, the veteran claimed that the disability had worsened. In fact, as noted above, the veteran testified that he underwent reconstructive surgery in December 2007. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a more recent VA examination is in order in this case for the purpose of ascertaining the severity and manifestations of the veteran's service-connected right and left shoulder disabilities. Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the veteran a notice letter in connection with his claims for an increased evaluation for his right and left shoulder disabilities. The letter should inform him of the information and evidence that is necessary to substantiate the claims; (2) inform him about the information and evidence that VA will seek to provide; (3) inform him about the information and evidence he is expected to provide; and (4) ask him to provide any evidence in his possession that pertains to the claims. The letter should also include an explanation as to the information or evidence needed to establish a disability rating and an effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the letter should tell the claimant to provide 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. 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 RO should 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 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. 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. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The RO should request that the veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected right and left shoulder disabilities. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. A specific request should be made for medical records dated from May 2007 to the present, including the records documenting his shoulder surgery in December 2007. 3. The veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected right and left shoulder disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the veteran's service-connected right and left shoulder disabilities. The examiner should report all signs and symptoms necessary for rating the veteran's disabilities under the rating criteria. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2007), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant unless he is notified. _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).