Citation Nr: 1007392 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-24 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for status post arthroscopic acromioplasty, subacromial decompression and acromioclavicular joint resection, left shoulder, evaluated as 10 percent from November 1, 2004 to March 6, 2006 and 20 percent from March 7, 2006. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The Veteran had active service from May 1985 to March 1988 and from May 1999 to July 2000. This claim comes before the Board of Veterans' Appeals (Board) on appeal of September 2005 and January 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO in Columbia, South Carolina certified this appeal to the Board for appellate review and has jurisdiction over the Veteran's claims. The appeal is remanded to the RO via the Appeals Management Center in Washington DC. REMAND Under 38 U.S.C.A. § 5103A (West 2002), VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. In this case, such an examination is necessary. The RO afforded the Veteran a VA examination of his left shoulder in March 2009, but the report of this examination is inadequate to decide the Veteran's claim. Therein, the VA examiner did not discuss whether the Veteran had additional functional loss, including more severe limitation of motion, during flare-ups. A discussion in this regard is necessary because, during the examination, the Veteran reported flare-ups multiple times daily, lasting minutes to hours, which caused greater pain and limitation of motion. The Veteran underwent a VA examination of his left shoulder in September 2005, but as the Veteran's representative points out in a VA Form 646 (Statement Of Accredited Representative In Appealed Case) dated October 2009, at that time, the examiner was not privy to the claims file and specifically indicated that he was basing his overall assessment of the Veteran's left shoulder on the medical history the Veteran reported. The Veteran's representative asserts that the examiner's assessment might have been different had the claims file been available. Given this assertion, the examiner should review the records that were not available in September 2005 and comment on the accuracy of the assessment made at that time. In a Statement In Support Of Claim dated in November 2007, the Veteran indicated that, prior to moving to Fayetteville, North Carolina, he had received treatment by a chiropractor. Records of this treatment are not in the claims file. The RO sent the Veteran letters during the pendency of the appeal, which informed him generally that if he had evidence that he had not previously submitted, concerning the level of his disabilities he should submit it or tell them about it. VA, however, has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records, and provide a release to obtain the records. If the claimant does not provide the release, VA has undertaken to request that the claimant obtain the records. 38 C.F.R. § 3.159(e)(2) (2009). Since becoming aware of the private treatment records, it does not appear that VA has followed the procedures outlined in 38 C.F.R. § 3.159(e)(2). Finally, during his March 2009 VA examination, the Veteran reported that he was not employed and, recently, had been laid off as a warehouse worker because of his severe left shoulder pain and limited mobility. The Veteran's comments in this regard raise a claim for a total disability evaluation based on individual unemployability (TDIU), which the RO has not yet considered in the first instance. The question of whether a TDIU may be assigned due to service-connected disability(ies) is, in certain circumstances, considered a component of a claim for a higher initial or increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). This occurs when a claimant: (1) submits evidence of a medical disability; (2) makes a claim for the highest evaluation possible; and (3) submits evidence of unemployability. In such a case, the evidence and assertion satisfy the requirement of 38 C.F.R. § 3.155(a), which defines an informal claim and indicates that it must "identify the benefit sought", and mandates consideration of whether a TDIU is assignable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In the case of a claim for total TDIU, the duty to assist requires that VA obtainin an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). VA may also have a duty to invite a claimant to submit employment records. Spurgeon v. Brown, 10 Vet. App. 194 (1997). This case is therefore REMANDED for the following actions: 1. After securing any necessary authorization, request, obtain and associate with the claims file all records of the Veteran's chiropractic treatment in accordance with 38 C.F.R. § 3.159(e)(2). 2. Ask the Veteran to provide employment records pertaining to the termination of his employment and the reasons for the termination. 3. Arrange for the Veteran to undergo a VA examination in support of his claim for an increased evaluation for a left shoulder disability. Forward the claims file to the examiner for review of all pertinent documents therein and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) report the ranges of shoulder motion in degrees. The examiner should determine whether the shoulder disability is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. ; b) based on the claims file, primarily the medical records dated from 2004 to 2006, determine whether the examiner's September 2005 assessment of the severity of the Veteran's left shoulder disability is accurate; c) report whether there is dislocation, malunion, fibrous union or non-union involving the humerus, scapula or clavicle and the severity of these symptoms, if present. provide detailed rationale, with specific references to the record, for the opinions expressed; and d) if an opinion cannot be expressed without resort to speculation, discuss why such is the case. e) provide an opinion as to whether the Veteran's left shoulder disability would prevent him from obtaining or maintaining all gainful employment for which his education and experience would otherwise qualify him. The examiner should provide a rationale for this opinion. 4. The agency of original jurisdiction should review the claims folder and ensure that the examination report contains all requested information and opinions 5. If the evidence (including the examiner's opinion or the employment records) indicates that the left shoulder disability precludes gainful employment, the claim should be referred to the Director of VA's Compensation and Pension Service, in accordance with the requirements of 38 C.F.R. § 4.16(b) (2009). 6. If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case. Thereafter, subject to current appellate procedure, return this case to the Board for further consideration, if in order. The Veteran has the right to submit additional evidence and argument on the remanded claim. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The law requires that this claim be afforded expeditious treatment. 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) (providing 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 expeditiously); see also VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court). ___________________________________________ Mark D. Hindin 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) (2009).