Citation Nr: 1237017 Decision Date: 10/25/12 Archive Date: 11/08/12 DOCKET NO. 10-22 348A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a back disability, to include as due to service-connected impingement syndrome, right shoulder. 2. Entitlement to an increased rating in excess of 20 percent for impingement syndrome, right shoulder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1994 to March 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and August 2011 rating decisions. The August 2009 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, granted an increased rating from 10 to 20 percent for impingement syndrome, right shoulder, effective April 29, 2010. The August 2011 rating decision, issued by the VA RO in New York, New York, denied entitlement to service connection for a back disorder, to include as due to service-connected impingement syndrome, right shoulder. The New York RO now maintains jurisdiction in this case. The Veteran provided testimony at a hearing before the undersigned at the RO in May 2012. A transcript is of record. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The relevant documents include VA treatment records, which have been reviewed and are discussed herein. The issue of entitlement to service connection for an acquired psychiatric disability, to include depression, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 In an August 2011 rating decision, service connection for a back disorder, to include as due to impingement syndrome, right shoulder, was denied. The Veteran issued a notice of disagreement with that denial in an August 2011 letter. A December 2011 rating decision confirmed the denial of service connection for a back disorder. That same month, the Veteran resubmitted a copy of the August 2011, which specifically disagreed with the denial of service connection benefits for his back. A statement of the case has not been issued as it relates to this issue. The Board is required to remand the case for issuance of the statement of the case. Manlicon v. West, 12 Vet. App. 238 (1999). In addition, during the Board hearing, the Veteran stated that his right shoulder disability had worsened since his last VA examination in June 2009. Specifically, he described decreased strength and range of motion as well as increased pain and discomfort. A Veteran 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). In addition, a Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Based on the foregoing, the Veteran must be provided with a new VA examination to determine the current severity of his right shoulder disability. The Veteran also reported during the hearing that he has received relevant treatment at VA facilities in Northport, Gainesville, Manhattan, the District of Columbia (DC), and Virginia, just outside of DC, and that most recently, his treatment has focused on his back. In an August 2011 statement, the Veteran reported that his VA treatment began in 1994. The physical claims file and Virtual VA file appears to include records from the New York VA system dated from July 2006 to November 2010 and June 2011; records from the Florida VA system dated between December 2001 and April 2008; and records from the DC VA medical center (VAMC) from November 2007 to July 2010. Therefore, it appears that there may be outstanding VA treatment records relevant to the issues on appeal. He indicated that his most recent treatment was for a back disability and not the shoulders, but his testimony was not completely clear. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). All relevant records in VA's possession must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, including from the VA treatment facilities identified by the Veteran in New York, DC, Florida, and Virginia. 2. Once the above has been completed, issue a SOC on the issue of entitlement to service connection for a back disability, to include as due to service-connected impingement syndrome, right shoulder, decided in the August 2011 and December 2011 rating decisions. The issue should be certified to the Board only if a timely substantive appeal is received. 3. Afford the Veteran a VA examination with a qualified physician to assess the severity of his service-connected impingement syndrome, right shoulder. The claims folder, including this remand and any relevant records contained in the Virtual VA system, should be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should report all orthopedic and neurologic manifestations of the impingement syndrome and any associated, malunion, nonunion or deformity of the bones around the shoulder joint. 4. The agency of original jurisdiction (AOJ) should review the examination reports to ensure that they contain the information, opinions, and rationales requested in this remand. 5. If any benefit for which there is a perfected appeal remains denied, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on 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 2002 & Supp. 2012). _________________________________________________ Mark D. Hindin 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) (2012).