Citation Nr: 1035668 Decision Date: 09/21/10 Archive Date: 09/28/10 DOCKET NO. 09-13 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 20 percent for right shoulder disability. 2. Entitlement to a compensable rating for left knee disability. 3. Entitlement to a compensable rating for right knee disability. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to March 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that rating decision, the RO denied compensable ratings for right shoulder, left knee, and right knee disabilities. In October 2007 the RO increased the rating for right shoulder disability to 20 percent, effective December 8, 2006. The Veteran has continued his appeals for higher ratings. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran provided testimony at a March 2010 hearing before the undersigned Acting Veterans Law Judge. 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 During a March 2010 Board hearing the Veteran described his service-connected right shoulder disability as having worsened since the most recent VA examination afforded him in January 2009. He also described ongoing private treatment for his right shoulder disability. To support his contention of worsening symptoms, he has provided a private note of medical treatment from March 2010 including, for example, a finding that the Veteran could only reach with his right arm ten degrees above horizontal without assistance. The Veteran contended that at the January 2009 VA examination only passive, rather than active, range of motion was evaluated. With respect to his left and right knees, at his March 2010 Board hearing the Veteran described prescription of knee braces by VA and ongoing private treatment. He contended that his March 2009 VA examination was not adequate. On this point, the Board notes that the March 2009 VA examiner asserted that he did not have the Veteran's claims file or outside medical records available for review. Associated with the claims file as of March 2008 was a March private MRI of the left and right lower extremities, submitted to VA on CD ROM. In light of the ongoing treatment, claimed worsening symptoms and inadequate VA examinations with respect to the Veteran's service- connected right shoulder, left knee, and right knee disabilities, the RO should seek to obtain all relevant private and VA treatment records and afford the Veteran a thorough VA examination that includes a review of the medical evidence of record. See 38 U.S.C.A. § 5103A(a)-(d); 38 C.F.R. §§ 3.159(c)(1)-(4), 4.2. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated his right shoulder, left knee and right knee disabilities during the period from December 2005 (one year prior to the date of the claims for an increased rating on appeal) forward. (a) After obtaining any appropriate authorizations for release of medical information, the RO should obtain records from each health care provider the Veteran identifies. (b) The records sought must include relevant VA records of treatment, as described at the Veteran's March 2010 Board hearing, to include those pertaining to physical therapy and medical prescription of left and right knee braces. (See March 2010 Board hearing transcript at pages 3-5, 9-14) (c) The records sought must also include records of ongoing private treatment, as described at the Veteran's Marc 2010 Board hearing. (See March 2010 Board hearing transcript at pages 3, 5, 8-9). (d) The Veteran should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO. 2. Once all available medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded an orthopedic examination with a physician for the purpose of determining the current severity of the Veteran's service- connected right shoulder, left knee, and right knee disabilities. The examination must include a review of the claims file. (a) The examining physician or a VA radiologist must review and interpret a March 2008 private MRI of the left and right lower extremities, received into the VA claims file on a CD-ROM in March 2008. (b) The examiner should perform full range of motion studies of the right shoulder, left knee and right knee, to include active range of motion, and comment on the functional limitations of the service- connected disabilities caused by pain, flare-ups of pain, weakness, fatigability, and incoordination. Any additional functional limitation should be expressed as limitation of motion of the affected body part. (c) The examiner must further note whether there are any signs or symptoms of instability, ligament laxity, effusion, crepitus, or locking of the right shoulder or left or right knee. (d) The examiner must describe the nature and severity of the Veteran's scar of the right shoulder and whether this scar is tender or painful. (See January 2009 VA examination report, last page.) (e) The examiner should provide a diagnosis for each disorder of the right shoulder, left knee, and right knee found. (f) The examiner should provide an opinion on the effect of the Veteran's right shoulder, left shoulder and right knee disabilities on the Veteran's social and occupational functioning and daily activities. (g) The examiner is requested to provide a complete rationale for his or her medical opinions, based on his or her clinical experience, medical expertise, and established medical principles. 3. Readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ 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 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).