Citation Nr: 1122234	
Decision Date: 06/08/11    Archive Date: 06/20/11

DOCKET NO.  08-06 774	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a rating higher than 20 percent for impingement syndrome of the left shoulder with traumatic arthritis.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and [redacted]


ATTORNEY FOR THE BOARD

M. Mac, Counsel


INTRODUCTION

The Veteran, who is the Appellant, served on active duty from July 1968 to January 1971.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in January 2007, of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In February 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the record.

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.


REMAND

In October 2009, the Board remanded the claim for increase for a VA examination to determine the current level of disability.  In December 2009, the Veteran was scheduled for a VA examination for which he failed to report, however a Report of General Information that same month shows that he was in a different part of the hospital on the day of the examination and requested that the examination be rescheduled.  VA records in January 2010 show the Veteran was in the substance abuse treatment program.  VA records in January 2010 show the Veteran failed to report for another VA orthopedic examination.  

In May 2011, the Veteran's representative stated that at the time of the VA examination in December 2009 and in January 2010, the Veteran was seeking treatment for substance abuse, which prevented him from appearing for either VA examination and it is unclear whether notice was sent to the Veteran notifying him of the VA examination.  As the Veteran had good cause for not reporting for his VA examinations, he should be afforded another VA examination.

Accordingly, the case is REMANDED for the following action:

1.  If the Veteran fails to report for the examination requested below, document that the Veteran was provided notice of the scheduled examination.

2. Afford the Veteran a VA examination to determine the current level of impairment of the service-connected impingement syndrome of the left shoulder with traumatic arthritis.

The examiner is asked to describe the range of motion of the left shoulder in degrees of flexion and abduction and any functional loss due to pain or painful motion (supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion) as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy.  Any additional functional loss should be expressed in terms of additional limitation of motion.  The examiner should also address whether there is additional loss of motion associated with flare-ups or on repetitive use.

The claims folder should be made available to the examiner for review.









3. After the above development is completed, adjudicate the claim.  If the decision remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case 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.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



_________________________________________________
George E. Guido Jr.
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).