Citation Nr: 1234603 Decision Date: 10/04/12 Archive Date: 10/11/12 DOCKET NO. 10-13 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for depression secondary to the Veteran's service connected right shoulder disability. 2. Entitlement to service connection for a right upper extremity neurological disability secondary to the Veteran's service connected right shoulder disability. 3. Entitlement to an increased rating for a right shoulder disability, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from September 2004 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) from February 2009, October 2009, and January 2012 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In January 2012, the Board remanded the appeal for additional development. In November 2011 and in July 2012, the Veteran testified at video hearings before the undersigned Veterans Law Judge (VLJ). Transcripts of the hearings have been associated with the claims file. All issues listed on the title page of this decision have been addressed at a hearing and the appeal as to all issues will be addressed together in this decision. The claim of entitlement to service connection for a right upper extremity neurological disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's depression is related to his service connected right shoulder disorder. 2. The Veteran's right shoulder disability is not manifested by intermittent, between favorable and unfavorable, ankylosis of scapulohumeral articulation; limitation of motion of the arm to 25 degrees from the side even taking into account his complaints of pain; fibrous union of the humerus; nonunion of the humerus; or loss of the head of the humerus. CONCLUSIONS OF LAW 1. Depression is related to the Veteran's service connected right shoulder disorder. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2011). 2. The criteria for a rating in excess of 20 percent for his right shoulder disability are not met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5200, 5201, 5202 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Under 38 U.S.C.A. § 5102 VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. As to the claim of secondary service connection for depression, given the fully favorable decision contained herein the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary since any deficiency in the timing or content of such notice would constitute harmless error. As to the claim for an increased rating for the right shoulder disability, the Board finds that a letter dated in September 2009 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. While the Veteran was not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with adequate notice in the above letter followed by a readjudication of the claim in the February 2012 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, even if the above letter did not provide adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remand. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the November 2011 and July 2012 hearings, the Veteran was assisted at the hearing by an accredited representative and he representative and the VLJ asked questions to draw out the current state of his disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtain while the appeal was in remand status. The hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent post-service evidence including in substantial compliance with the January 2012 Board remand directions his post-November 2007 treatment records from the Portland VA Medical Center. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The record also shows that the Veteran was afforded a VA examination in February 2012 which is adequate to adjudicate the claim and substantially complies with the January 2012 Board remand because, after a review of the record on appeal and an examination of the claimant, the examiners provided findings as to the severity of the claimant's disability that allows VA to rate it under all applicable rating criteria. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall, supra; D'Aries, supra; Dyment, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Service Connection Claim The Veteran contends that his service connected right shoulder disorder caused or aggravated his depression. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Service connection has been in effect for a right shoulder disability since February 11, 2006. As to a current disability, while the December 2011 VA examiner opined that the Veteran was not currently depressed, he also noted that his pre-October 2011 VA treatment records documented his complaints and treatment record. The Board also notes that its review of the claims file shows that VA treatment records generated during the pendency of the appeal, including records dated in April 2010, May 2010, and October 2011, document the Veteran complaints and treatment for a psychiatric disorder diagnosed as depression. Therefore, because the requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," the Board also finds that the Veteran had disability during the claim period despite the fact that the December 2011 VA examiner opined that it had resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to the relationship between the current depression and the already service connected right shoulder disability, the December 2011 VA examiner opined that the "depression that he was treated for earlier at the [Portland VA Medical Center] most likely was related to his service connected shoulder condition." This medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that his service connected right shoulder disability is related to his depression, and service connection is warranted on a secondary basis. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); Allen, supra. The Rating Claim The Veteran asserts that his service-connected right shoulder disability is manifested by increased adverse symptomatology that warrants an increased rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Most recently, a February 2010 rating decision granted the right shoulder disability a 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5003 (degenerative arthritis). The record reflects that the Veteran is left-handed. Therefore, the Board will treat his right shoulder as his minor arm. 38 C.F.R. § 4.71a. Therefore, because the Veteran already receives or exceeds the maximum rating possible for arthritis and nonunion of either the clavicle or scapula, an increased rating is warranted for his minor right shoulder disability if there is intermittent, between favorable and unfavorable, ankylosis (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5200. Similarly, an increased rating is warranted for his minor right shoulder disability if there is limitation of motion of the arm to 25 degrees from the side (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5201. Likewise, an increased rating is warranted for his minor right shoulder disability if there is fibrous union of the humerus (40 percent); nonunion of the humerus (false flail joint) (50 percent), or loss of the head of the humerus (flail shoulder) (70 percent evaluation). 38 C.F.R. § 4.71a, Diagnostic Code 5202. When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id, at 206. Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. Additionally, 38 C.F.R. § 4.45 provides, as regards to the joints, that the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the spine is considered a major joint. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2011); Burton v. Shinseki, 25 Vet. App. 1 (2011). As to 38 C.F.R. § 4.71a, Diagnostic Code 5200, while the range of motion of the Veteran's right shoulder was limited at the February 2009 and February 2012 VA examinations as well as in the VA treatment records found in the claims file, the claims file does not contain a diagnosis of ankylosis. (Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992).) In fact, the February 2012 VA examiner opined that there was no ankylosis. In the absence of ankylosis, the Board may not rate his service-connected right shoulder disability as ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997). Consequently, an increased rating is not warranted for the Veteran's service-connected right shoulder disability under Diagnostic Code 5200. 38 C.F.R. § 4.71a. This is true for the entire appeal period and therefore consideration of staged ratings is not warranted. See Hart, supra. As to 38 C.F.R. § 4.71a, Diagnostic Code 5201, at the February 2009 VA examination the right shoulder range of motion taking into account his pain and after repetitive use was flexion to 130 degrees, abduction to 90 degrees, external rotation to 90 degrees, and internal rotation to 80 degrees. (Normal shoulder motion is flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I (2011).) It was also noted that he had tenderness to palpation. Strength was 5/5 except for 4/5 rotator cuff strength. It was also opined that the Veteran would have approximately 25 to 30 degrees of loss of range of motion, moderate weakness, moderate fatigability, and mild loss of coordination during painful flare-up episodes with repetitive type activity. It was also noted that since his second surgery, the Veteran's chronic pain had reduced to 4/5 out of 10 from 6/7 out of 10. Lastly, it was opined that the Veteran would not do well working in his past employment in logging and he would be better suited for sedentary employment. At the subsequent February 2012 VA examination, the right shoulder range of motion taking into account his pain and after repetitive use was flexion to 85 degrees and abduction to 75 degrees. It was also reported that the Veteran had tenderness and guarding. Abduction strength was reduced at 4/5 by flexion strength was normal at 5/5. While VA treatment records document the Veteran's periodic complaints and treatment for right shoulder pain and limitation of motion, nothing in these records show adverse symptomatology worse than what was reported in the above two VA examinations. See Colvin, supra. Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca, supra, that the Veteran's functional losses do not equate to the criteria required for an increased rating because, at its worst, abduction was 60 degrees after taking into account the 30 additional degrees of lost motion the February 2009 VA examiner opined that he would have during a painful flare-up (not 25 degrees). 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.150. This is true for the entire appeal period and therefore consideration of staged ratings is not warranted. See Hart, supra. An increased rating is also not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5202. In this regard, the Board notes that VA treatment records, including X-rays dated in February 2005, June 2006, April 2007, and April 2010 and a magnetic resonance imaging evaluation (MRI) dated in June 2007, are negative for findings of fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus. Likewise, the February 2009 and February 2012 VA examinations were likewise negative for fibrous union of the humerus, nonunion of the humerus, or loss of the head of the humerus. Therefore, an increased rating is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5202. Also see Butts v. Brown, 5 Vet. App. 532 (1993) (holding that the Board's choice of a diagnostic code should be upheld so long as it is supported by explanation and evidence.). This is true for the entire appeal period and therefore consideration of staged ratings is not warranted. See Hart, supra. As to the Veteran's claims that his right shoulder disability is worse than rated, under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected right shoulder disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's condition with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." Specifically, while one VA examiner opined that the Veteran was better suited for sedentary employment as opposed to his usual jobs as a logger and fisherman, there simply is no objective evidence that his right shoulder disability, acting alone, has resulted in frequent periods of hospitalization or in marked interference with employment. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Therefore, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. In short, there is nothing in the record to indicate that this service-connected disability causes impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In reaching the above conclusions, the Board has not overlooked the various lay statements found in the record. In this regard, the Veteran is credible to report on what he sees and feels and others are credible to report on what they can see. See Jandreau, supra. However, the Board finds more competent and credible the medical opinions as to the severity of his disability provided by the experts at the VA examinations than these lay assertions. See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). In adjudicating the current appeal for an increased rating, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because, while the Veteran reported that his right shoulder disability interferes with his work logging and fishing, he has not claimed that acting alone it prevent him from obtaining and/or maintaining employment. Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for a TDIU. The Board has also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim for an increased rating must be denied. ORDER Entitlement to service connection for depression is granted. Entitlement to an increased rating for a right shoulder disability, evaluated as 20 percent disabling, is denied. REMAND As to the claim of service connection for a right upper extremity neurological disability, in February 2012 the Veteran was provided a VA examination to obtain a medical opinion as to the relationship between any current right upper extremity neurological disability and his service connected right shoulder disability. However, the Board finds the medical opinion provided by the examiner inadequate because, despite the examiner's opinion that the Veteran had worsening tingling in his right arm, the examiner relied on an older 2010 nerve conduction study as the basis of his opinion instead of conducting his own neurological testing and the examiner did not provide an opinion as to whether this tingling was aggravated by his service connected right shoulder disability. Therefore, the Board finds that a remand to obtain an addendum to the examination is required. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The record shows that the Veteran receives ongoing treatment at the Portland VA Medical Center. However, a review of the record on appeal does not reveal his post-December 2011 treatment records from this facility. Therefore, while the appeal is remand status these records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, this issue is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should obtain and associate with the claims file the Veteran's post-December 2011 treatment records from the Portland VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. After undertaking the above development to the extent possible, the RO/AMC should obtain an addendum to the February 2012 VA examination by a neurologist. The claims file should be provided to the examiner in connection with the addendum. The examiner should conduct an electromyography (EMG) and a nerve conduction study as well as any other indicated tests and studies deemed appropriate and all clinical findings should be reported in detail. After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions: a. Does the Veteran have a right upper extremity neurological disability and, if so, what is its diagnosis? b. As to each diagnosed right upper extremity neurological disability, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any neurological disability was caused or aggravated by a service connected disability. In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his neurological disability (i.e., tingling, pain, numbness, etc . . .). In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of current right upper extremity neurological disability (i.e., a baseline) before the onset of the aggravation. In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 3. The RO/AMC should thereafter readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefit, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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 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. 2011). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs