Citation Nr: 1111331 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 08-24 806 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased compensable rating for the service-connected hypertension. 2. Entitlement to an increased compensable rating for the service-connected residuals of a right shoulder strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the RO. The Veteran presented testimony at a hearing held at the RO before the undersigned Veterans Law Judge in January 2011. A transcript of the hearing is associated with the claims folder. The Veteran had filed a Notice of Disagreement in July 2009 for the June 2009 rating decision that granted service connection for degenerative disc disease of the cervical spine and assigned a 10 percent rating. A Statement of the Case was issued in April 2010. However, the Veteran is not found to have submitted a timely Substantive Appeal in order to perfect an appeal from that the June 2009 rating decision. The issue of an increased rating for the service-connected cervical spine disability continues to be addressed in the record, but has not been adjudicated further by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction at this time and refers the matter to the AOJ for appropriate action. The issues of an increased rating in excess of 10 percent for the service-connected right shoulder disability and a compensable rating for the service-connected hypertension are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The service-connected right shoulder strain is shown to have been manifested by a disability picture that more nearly approximates that of arthritic changes with limited motion due to pain. CONCLUSION OF LAW The criteria for the assignment of an increased rating of 10 percent for the service-connected right shoulder disability have been met. 38 U.S.C.A.§§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.71a including Diagnostic Codes (DCs) 5003, 5010, 5201 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, a full discussion of VCAA is not required at this time. The most recent VA examination in April 2009 showed that the Veteran had X-ray evidence of mild degenerative changes in the glenohumeral joint and mild to moderate degenerative changes of the acomioclavicular joint of the right shoulder. Moreover, the VA examiner noted that he had a functional loss due to pain and weakness of the right shoulder. The examiner added that he has significant occupational impairment because he had difficulty in raising his right arm. Accordingly, on this record, the service-connected right shoulder disability picture is shown to more nearly resemble that of arthritis with painful limited motion and warrants the assignment of a 10 percent rating for the initial portion of the period of the appeal. As noted, the question of a current rating higher than 10 percent will be deferred pending completion of additional development to further evaluate the extent of the service-connected right shoulder functional loss. ORDER An increased rating of 10 percent for the service-connected right shoulder disability is granted, subject to the regulations controlling disbursement of VA monetary benefits. REMAND The evidence tends to show that the service-connected right shoulder disability may have worsened. At the hearing before the Board in January 2011, the Veteran stated that he had received cortisone shots in his right shoulder for pain and experienced constant pain especially when it was overextended. He indicated that his pain was increased with use of the right shoulder and that the shoulder tired easily. The Veteran was afforded a VA examination in April 2009. The examination report noted that there was no objective evidence of pain on active motion of the right shoulder. Because of the evidence of possible worsening since the last examination, a new examination is needed to determine the severity of the right shoulder disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The record also shows that the Veteran receives treatment for the service-connected conditions through the VA Healthcare System. At the hearing in January 2011, the Veteran testified about being treated for hypertension by VA in Port Charlotte and Fort Myers and for the right shoulder by VA in Fort Myers in 2008 or 2009. Only the VA treatment records dated from 2001 to 2003 have been associated with the claims file. The RO should take any indicated action in order to obtain copies of any VA records of treatment for the hypertension or the right shoulder disability from 2003 to present. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to obtain copies of all records referable to treatment rendered the Veteran for the service-connected hypertension and right shoulder disability dated since 2003 by the VA healthcare system. 2. The RO then should schedule the Veteran for VA examinations to determine the current nature and severity of the service-connected hypertension and right shoulder disability. All indicated testing should be performed in this regard. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. An appropriate examiner in this regard should record complete blood pressure readings and related findings in order to facilitate rating of the service-connected hypertension in terms of the established criteria. An appropriate examiner should identify the Veteran's dominant arm and then render a diagnosis for any service-connected right shoulder disability found to be present. This examiner should specify the range of motion in degrees of the right shoulder including flexion, abduction, and internal and external rotation. The range of motion studies should include range of motion testing after repetitive movement and the examiner should account for any limitations due to pain, weakness, fatigability, or incoordination. The examiner should report whether there is any malunion, nonunion, or dislocation of the clavicle or scapula. The examiner should also indicate whether there is any malunion or recurrent dislocation of the scapulohumeral joint with infrequent or frequent episodes of guarding of any arm movements. The examiner should provide a rationale for any opinion. 3. Following completion of all indicated development, the RO should readjudicate the claims for increase in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and his representative who should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. 2010). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs