Citation Nr: 1237482 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-41 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for tendonitis of the left shoulder with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO in St. Petersburg, Florida. In a June 2011 decision, the Board denied the Veteran's claim for entitlement to an initial rating in excess of 10 percent for tendonitis of the left shoulder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Order, the Court vacated the June 2011 Board decision, and remanded the case to the Board for further proceedings consistent with a March 2012 Joint Motion for Remand (JMR). In accordance with the March 2012 JMR, the Board is hereby Remanding the case for further development as outlined below. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. To the contrary, when he was last examined in 2008, the Veteran reported that he works full time and that no time has been lost due to his disability. The Veteran has not reported that the circumstances of his employment have changed since then. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been raised. 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 As noted in the Introduction, the Board's June 2011 decision denying the Veteran's claim of entitlement to an initial rating in excess of 10 percent for tendonitis of the left shoulder was vacated and remanded by the Court. The reason for the remand centered on the adequacy of the November 2008 VA examination. Specifically, despite the fact that the Board addressed the Veteran's concerns regarding the adequacy of the examination in its determination that the examination report was adequate, the parties agreed that the Board did not ensure that the November 2008 VA examination report was adequate in the light of Mitchell v. Shinseki, 25 Vet.App. 32 (2011). The parties to the JMR agreed that on Remand, the Board should consider the holding in Mitchell, which the parties acknowledged was decided after the Board's June 2011 decision, and determine the adequacy of the November 2008 VA examination in light thereof. In accordance with the JMR, the Board has considered Mitchell in its assessment of the current claim. In Mitchell, the Court found examination findings to be inadequate where the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." Mitchell, 25 Vet.App. at 44. For the following reasons, in light of the holding in Mitchell, the Board finds that a new VA examination is required in the present case. In this case, the Veteran was afforded a VA examination for the left shoulder in November 2008. At the November 2008 VA examination, the Veteran had limitation of flexion to 180 degrees with pain, abduction to 160 degrees with pain, internal rotation to 90 degrees with pain, and external rotation to 60 degrees with pain. The Board noted in its June 2011 decision that the VA examination demonstrated that the Veteran had significant range of motion in the left shoulder notwithstanding his additional complaints of pain, weakness, limitation and popping of the joint. The examiner noted that he was able to perform all activities of daily living with only mild or moderate effects on chores, exercise, sports, and recreation. Despite the examiner's report that left shoulder ranges of motion were all accompanied by pain, the VA examiner did not note the starting point for pain in each of the Veteran's respective ranges of motion. Although the Board previously found the VA examination report to be an adequate report upon which to base a decision, when viewed in light of Mitchell, the Board finds that more detail is required in order for the report to be adequate. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). As such, the Board finds that the Veteran should be provided with a new VA examination to evaluate the severity of his left shoulder disability. Lastly, in order to ensure that all pertinent treatment records have been obtained, the Veteran should be asked to identify all VA and non-VA health care providers that have treated him for his left shoulder disability. All identified records should be obtained. If any identified records cannot be secured, such should be reported in the claims file with notice to the Veteran. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to identify all VA and non-VA health care providers that have treated him for his left shoulder disability. All identified records should be obtained. If any identified records cannot be secured, such should be reported in the claims file with notice to the Veteran. 2. Schedule the Veteran for a VA examination to evaluate the current severity of the service-connected left shoulder disability. All indicated tests and studies should be conducted. The claims file, to include a copy of this Remand, must be made available for review of the Veteran's pertinent history. The examination report must state whether this review was accomplished. The ranges of left shoulder motion should be reported in degrees. The point where pain has its onset should be recorded. The examiner must also provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner must express this opinion in terms of the degree of additional range-of- motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare- ups, or pain. The examiner must specify at what degree any limitation of motion is specifically attributable to pain. If the Veteran complains of flare-ups, the examiner should discuss whether any functional loss is attributable to pain, during flare-ups. The examiner should also report if any of the following disorders of the left shoulder are present: dislocation, nonunion or malunion of the clavicle or scapula, recurrent dislocation at the scapulohumeral joint, ankylosis of the scapulohumeral articulation, and, if so, the angle. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. The RO/AMC must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. If the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, readjudicate the Veteran's claim. If any benefit is not granted in full, the RO must furnish a supplemental statement of the case, and the Veteran and her representative should be provided an opportunity to respond in accordance with applicable statutes and regulations. The case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ 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) (2012).