Citation Nr: 1039710 Decision Date: 10/25/10 Archive Date: 11/01/10 DOCKET NO. 07-01 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for right shoulder tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty October 1989 to February 1992. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for right shoulder tendonitis and assigned a 10 percent disability evaluation. In May 2010, the Veteran presented testimony in a travel board hearing in San Antonio, Texas before the undersigned. A copy of the transcript has been associated with the claims folder. 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 VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran was last evaluated for his right shoulder in July 2009, and during his May 2010 hearing he indicated that his disability had increased in severity since that examination. Additionally, he testified that he had problems at work due to his right shoulder disability. The United States Court of Appeals for Veterans Claims has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, a contemporaneous examination of the Veteran's right shoulder is necessary to accurately assess his disability picture. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran an examination to determine the current level of severity of his right shoulder tendonitis. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies should be performed. All indicated studies, including X-ray and range of motion studies in degrees, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also provide an opinion concerning the impact of the right shoulder disability on the Veteran's ability to work to include whether the Veteran is unemployable because of his right shoulder disability. The supporting rationale for all opinions expressed must be provided. 2. Notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide him and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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 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). _________________________________________________ DAVID L. WIGHT 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) (2010).