Citation Nr: 1120857 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 08-23 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability evaluation in excess of 20 percent for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2011, the Veteran testified at a videoconference hearing before the undersigned. A copy of the transcript of that hearing is of record. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, his claim for individual employability was previously denied by the RO in a December 2008 decision. The Veteran did not appeal this decision. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability is not currently before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 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 The Veteran seeks entitlement to a disability evaluation in excess of 20 percent for his service-connected left shoulder disorder, which has been diagnosed as traumatic arthritis. The Veteran was last afforded a VA examination for his left shoulder in June 2008. At his April 2011 Board hearing, however, the Veteran testified that there had been a significant change in his left shoulder symptomatology since his June 2008 examination. Specifically, he indicated that he is unable to use his left shoulder at times and is unable to sleep on it. The appellant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). As such, the Board finds that this issue must be remanded so that the Veteran may be afforded a VA examination to determine the current severity of his service-connected left shoulder disorder. The claims file further reflects that the Veteran has received medical treatment through the Central Alabama Veterans Health Care System (CAVHCS); however, as the claims file only includes outpatient and inpatient treatment records from CAVHCS dated up to August 2008, any additional records from that facility should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC/RO should obtain and associate with the claims file all outstanding VA record The Board notes that the Veteran reports that he is receiving Social Security Administration (SSA) benefits. In this regard, the Court held in Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) that 38 U.S.C.A. § 5103A does not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Court also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records. Here, the Veteran himself did not identify any SSA records that would be relevant to his claims. Rather, at his personal hearing, he testified that he retired on account of his age/longevity, and that disability was not a factor. Hearing Transcript at 7-8. He clearly indicated that he had not been awarded SSA disability insurance benefits. Moreover, neither the Veteran nor his representative have suggested that there would be any SSA records that would support his increased ratings claims. The Board, therefore, concludes that the record does not establish a reasonable possibility that there are such records that are relevant to these claims. A Remand to obtain these records is not warranted. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the Veteran's complete VA treatment records dated from August 2008 to the present from the Central Alabama Veterans Health Care System (CAVHCS) West Campus in Montgomery, Alabama. 2. Next, the RO should schedule the Veteran for an appropriate VA orthopedic examination to determine the current nature and severity of his left shoulder disability. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should report the range of motion measurements for the left shoulder in degrees. He or she should further comment as to whether there is any pain, weakened movement, excess fatigability or incoordination upon movement, as well as to whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. All limitations of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner is also asked to conduct all necessary neurological tests to determine if there is any impairment of the ulnar nerve associated with the Veteran's left shoulder disability. The examiner should state whether there is any evidence of ankylosis or impairment of the humerus, clavicle, or scapula, and if so, to what extent. The examiner should identify the limitation of activity imposed by the Veteran's service-connected left shoulder disability with a full description of the effects the disability has upon his ordinary activities. The examiner should also fully describe the impact the disability has on the Veteran's economic adaptability. All opinions are to be accompanied by a clear rationale consistent with the evidence of record. If the requested opinions cannot be made without resorting to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report prepared must be typed. 3. After conducting any additional development deemed necessary, the RO should reconsider the issue on appeal. If the benefits sought on appeal remain denied, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time to respond. The appellant 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). _________________________________________________ MICHAEL A. HERMAN 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).