Citation Nr: 1002006 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 05-37 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a chronic right shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from July 1989 to September 1989 and additional periods of active duty for training. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Waco, Texas, Regional Office (RO) which denied service connection for right shoulder injury residuals and right hip injury residuals. In May 2008, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. In September 2008, the Board remanded the Veteran's claims to the RO for additional development of the record. In February 2009, the Board denied service connection for both a right shoulder disorder and a right hip disorder. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2009, the Court granted the Parties' Joint Motion for Remand; vacated that portion of the February 2009 Board decision which denied service connection for a right shoulder disorder; and remanded the Veteran's claim to the Board for additional action. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. REMAND In November 2009, the Court granted the Parties' Joint Motion for Remand and remanded the Veteran's claim of entitlement to service connection for a chronic right shoulder disorder to the Board for additional action as directed by the Joint Motion. The Joint Motion conveys that the Veteran should be afforded an examination for compensation purposes which was "reviewed and signed by a licensed physician." Therefore, the Board has no discretion and must remand the instant appeal for compliance with the Court's November 2009 Order granting the Parties' Joint Motion to Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the Parties that forms the basis of the Joint Motion to Remand). Accordingly, this case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for compensation purposes in order to determine the current nature and etiology of the Veteran's right shoulder disorder. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic right shoulder disorder had its onset during active service/active duty/active duty for training or otherwise originated during active service/active duty/active duty for training. Send the claims folder to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted and must be reviewed and signed by a licensed physician. 2. Then readjudicate the issue of the Veteran's entitlement to service connection for a chronic right shoulder disorder. If the benefit sought on appeal remains denied, the Veteran should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran should be given the opportunity to respond to the SSOC. The Veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran's appeal must be afforded expeditious treatment by the VA. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38. _________________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2009).