Citation Nr: 1300487 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 10-25 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating greater than 20 percent for degenerative changes, cervical spine status post C6-7 fusion. 2. Entitlement to a disability rating greater than 20 percent for degenerative changes, left shoulder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served from June 1957 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2010. A transcript of this proceeding has been associated with the claims file. In a September 2011 determination, the Board denied the Veteran's claims of entitlement to disability ratings in excess of 20 percent for degenerative changes of the cervical spine and degenerative changes of the left shoulder. The Veteran subsequently appealed these denials to the United States Court of Appeals for Veterans Claims (Court). In March 2012, the Veteran's attorney and VA's General Counsel filed a joint motion for partial remand with regard to these issues. In a March 2012 order, the Court granted the joint motion, vacating the Board's decision on these two matters and remanding the issues to the Board for further adjudication. Also in the September 2011 decision, the Board denied the Veteran's claim of entitlement to special monthly compensation based upon aid and attendance, which was not appealed to the Court by the Veteran; granted entitlement to service connection for a chronic headache disorder, representing a full grant of that appeal; and remanded the claim of entitlement to service connection for a bilateral hip disorder. The RO has not yet addressed the directives contained in the September 2011 remand with regard to the bilateral hip disorder claim, and the issue is not before the Board at this time. While the Veteran was previously represented by Disabled American Veterans, in May 2012, he appointed the above-referenced attorney as his representative. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file has been conducted. As noted in the Board's September 2011 decision, the claims of entitlement to service connection for the lumbar spine and vascular impairment, specially adaptive housing grant, and a total disability rating have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are 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 The March 2012 joint motion for partial remand indicated that the March 2010 VA examination afforded to the Veteran was inadequate, and both parties agreed that the Veteran needed a new examination to determine the current severity of his service-connected cervical spine and left shoulder disabilities. Specifically, the parties agreed that, while the examiner indicated that there was pain throughout motion of the cervical spine and left shoulder with no additional limitation of motion after repetitive movements, the examiner did not make a determination as to at what point on the range of motion the Veteran's pain resulted in additional functional loss, if any. There was no finding as to the degree of range of motion loss due to pain on use. In order to comply with the joint motion, the Board must remand the Veteran's claims for additional development. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination as to the nature and severity of his cervical spine and left shoulder disabilities. All necessary tests should be conducted. The examiner should provide findings as to the range of motion of the cervical spine and left shoulder, including flexion and extension of the cervical spine and flexion and abduction of the left shoulder. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the cervical spine or left shoulder is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. The examiner should also indicate if there is ankylosis of either the cervical spine or left shoulder and whether there is any other impairment of the humerus, clavicle, or scapula. 2. Readjudicate the claims, including specific consideration of whether higher or separate ratings are warranted under any potentially applicable diagnostic code. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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. 2012). _________________________________________________ H. N. SCHWARTZ 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).