Citation Nr: 1301301 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-00 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an effective date earlier than January 24, 2005, for the grant of service connection for a right shoulder disability. 2. Entitlement to a disability rating in excess of 30 percent for a right shoulder disability. 3. Entitlement to service connection for headaches, to include as secondary to the service-connected sinusitis and right shoulder disability. 4. Entitlement to service connection for a cervical spine disorder, to include as secondary to the service-connected right shoulder disability. 5. Entitlement to service connection for residuals from an injury to the head/ jaw. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: James G. Fauson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to November 1975. This appeal to the Board of Veterans' Appeals (Board) is from April 2006 and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board notes there is a derivative claim for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. Specifically, a September 2009 statement from the Veteran indicates that he had to leave his job at a steel factory due to his disabilities. Therefore, the RO must adjudicate this claim. This TDIU matter and the claim of entitlement to a disability rating in excess of 30 percent for the right shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO in Washington, DC. FINDINGS OF FACT 1. Following the initial July 1976 denial of the claim of entitlement to service connection for a right shoulder disorder, the Veteran did not submit a claim, either formal or informal, prior to January 24, 2005. 2. The Veteran did not suffer from headaches during his active service or for many years thereafter, and there is no indication the current headaches are related to his military service. 3. The probative medical evidence of record does not indicate that the Veteran's headaches are secondary to or aggravated by his service-connected sinusitis or right shoulder disability. 4. The Veteran did not suffer from a neck disorder during his active service or for many years thereafter, and there is no indication a current neck disorder is related to his military service. 5. The probative medical evidence of record does not indicate that the Veteran's neck disorder is secondary to or aggravated by his service-connected right shoulder disability. 6. The Veteran does not currently suffer from residuals of an injury to the head/jaw. CONCLUSIONS OF LAW 1. Entitlement to an effective date prior to January 24, 2005, for the grant of service connection for a right shoulder disability is not warranted. 38 U.S.C.A. §§ 5101, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.1(p), 3.400 (2012). 2. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 3. The criteria for service connection for a neck disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 4. The criteria for service connection for an injury to the head/ jaw have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As an initial matter, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary concerning only the Veteran's claim of entitlement to an effective date for the grant of service connection for the right shoulder disability. See Mason v. Principi, 16 Vet. App. 129 (2002). However, the VCAA does apply to the claims of entitlement to service connection for headaches, a neck disorder, and residuals of an injury to the head/jaw. The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in June 2005, March 2006, July 2008, and October 2008 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters also advised the Veteran of the evidence needed to establish disability ratings and effective dates for the claims on appeal. The case was last readjudicated in August 2012, so any timing defect in the receipt of these letters has been rectified. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records, and several VA examination reports concerning the nature and etiology of the claims pertaining to headaches and a neck disorder. The Board notes that the Veteran did not undergo VA examinations germane to the claim concerning an injury to the head/ jaw, but also finds that such an examination is not required. The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. 38 U.S.C.A. § 5103A(d)(2). If the record indicates that there may be a nexus between the current disability and any service related incident, then the Board may order an RO to have a claimant examined. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, there is no competent indication that the Veteran suffers from any residuals of an injury to the head/jaw. In fact, there is no credible evidence of any injury to the head/jaw as having occurred during the Veteran's military service. Without such an indication, the Board may consider the medical records already in the file without requiring a VA examination. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Earlier Effective Date In April 1976, the Veteran filed his initial claim of entitlement to service connection for a right shoulder disorder. This claim was denied in a June 1976 rating decision, which he did not appeal. Thereafter, in January 2005, the Veteran filed a petition to reopen the previously denied claim. In April 2006, the RO granted the Veteran's claim for a right shoulder disability, and assigned an initial rating of 30 percent, effective January 24, 2005, the date of receipt of his petition to reopen. The Veteran argues that his effective date should be the date he initially filed for service connection, April 16, 1976. The basic facts are not in dispute. As the RO noted, the Veteran's initial application for service connection was filed with VA on April 16, 1976 and his claim to reopen was received on January 24, 2005. Indeed, the Veteran does not contend otherwise. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Here, the RO granted service connection effective from the date the Veteran filed his claim to reopen was filed with VA. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision, as is the case here as concerning the prior June 1976 decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Here, however, the Veteran has not alleged CUE in the prior June 1976 decision that initially considered and denied his claim of entitlement to service connection for a right shoulder disorder. CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). The Federal Circuit Court has determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). Thus, because the Veteran did not timely appeal this earlier June 1976 decision denying his claim for service connection for a right shoulder disorder, and did not file a petition to reopen this claim until January 24, 2005, this is the earliest possible effective date he can receive for the eventual grant of service connection. See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) and McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim for an effective date earlier than January 24, 2005, for the grant of service connection for a right shoulder disability. And because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Hence, the appeal is denied. III. Service Connection Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection may also be granted for a disability shown to be secondary to an already service-connected disorder. 38 C.F.R. § 3.310 (providing that "a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected"). Service connection may also be granted if there is evidence of aggravation of a claimed condition as a result of the service-connected disability. Id. § 3.310(b) ("Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected."). Thus, in addition to the framework above, service connection for the Veteran's claimed conditions of headaches and a neck disorder could be granted if it is shown that he suffers from a disability that is secondary to or aggravated by his service-connected right shoulder disability or sinusitis. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. See also Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt is resolved in the Veteran's favor. 38 CFR § 3.102. Headaches The Veteran alleges that his headaches are either directly attributable to his military service since he has suffered from them since that time or, in the alterative, secondarily related by way of his service-connected sinusitis and right shoulder disabilities. For the reasons that follow, his claim shall be denied. First, the Board acknowledges that the Veteran currently suffers from headaches. The Veteran underwent VA examinations in October 2007 and November 2008 confirming this diagnosis. He has also received treatment at VA Medical Centers (VAMCs) since December 2004 through October 2012, which include complaints of and treatment for headaches. The Veteran's claim fails on a direct basis for two reasons. First, there is no evidence that the Veteran suffered from headaches or a headache disorder in service. A review of his service treatment records reveals no complaints of or treatment for headaches. Second, the October 2007 VA examiner specifically determined the Veteran's migraine headaches are not associated with military service. Thus, there is no evidence establishing a nexus between the Veteran's current condition and his active service. Absent this evidence, the Board cannot grant service connection for this condition on a direct basis. The Veteran, however, also contends that his headaches are secondary to either his service-connected right shoulder disability or sinusitis. Again, however, the evidence does not support this contention. In the Veteran's October 2007 VA examination, the examiner stated that there is no connection between the Veteran's headaches and his service-connected sinusitis. He noted that sinusitis does not cause migraine headaches. Further, the examiner stated these two disorders are separate and distinct, according to neurological and CT studies. Finally, the examiner stated it is unlikely the sinusitis has permanently aggravated the headaches since sinusitis is seasonal and the two disorder, sinusitis and headaches, are unrelated. The November 2008 VA examiner also concluded that it is less likely as not that the Veteran's headaches were related to the right shoulder disability because the Veteran told him the headaches began prior to the injury in-service causing the right shoulder disability. (It should be noted that in his recent December 2012 submission, the Veteran's attorney has not contended that the claimed headaches were related to the right shoulder.) To the extent that the Veteran contends that his headaches are secondary to his service-connected right shoulder disability and sinusitis, the Board finds that he is not competent to do so. Determining the etiology of a condition or its relation to another disability requires medical knowledge, and the Veteran is not competent to offer such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing the example that a Veteran may be competent to identify a simple condition such as a broken leg, but may not be competent to identify other conditions such as a form of cancer). Finally, the Board notes that the Veteran does not meet the criteria for service connection based on a continuity of symptomatology analysis. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) ("An alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology."). Under 38 C.F.R. § 3.303(b), continuity of symptomatology may be used to support a claim for service connection. In such instances, the second and third criteria for service connection can be satisfied if the Veteran presents: (a) evidence that a condition was noted during service or a presumptive period; (b) evidence of post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McCormick v. Gober, 14 Vet. App. 39, 49-50 (2000) (citing 38 C.F.R. § 3.303(b) ); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In his statements to the RO, the Veteran argues that his headaches are due to his military service since he has had them on a continuing basis since his service. The medical evidence of record, however, belies this contention. The Veteran did not have headaches during service. One can expect service treatment records to reflect the presence of the medical complaints the Veteran experienced in service, and in their absence, reasonably conclude they were not present at the time. (The Veteran's records variously show he complained about his foot, urethral discharge, dizziness, chills, his throat, lice, a possible kidney infection, his stomach, his legs, his chest, his arm, but not headaches.) In this context, the absence of any record of headache complaints in service yields the conclusion there were no headache complaints in service. It therefore, follows the Veteran did not have on-going headaches since then. In addition, the earliest evidence of the Veteran's complaining of headaches, or any head related problems, was in a January 2005 VA treatment record. Thereafter, in June 2005, he again reported headaches. At that time, he was diagnosed with a subdural hematoma clot, which he had removed. Therefore, the earliest the evidence of record shows he suffered from any headache symptoms comes in January 2005, approximately 30 years after the Veteran's service. This evidence weights against the conclusion there was continuity of symptomatology for headaches ever since service. In summary, the Board finds the Veteran did not suffer from a headache disorder during service or for many years thereafter, and there is no indication that his current headache disorder is related to service. The Board further finds that the probative medical evidence of record does not indicate that the Veteran's headaches are secondary to or aggravated by his service-connected right shoulder disability or sinusitis. Accordingly, the Board concludes that the criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. Neck Ordinarily, VA adjudicators must consider all potential bases of entitlement to service connection - so direct, presumptive and secondary. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Here, though, the Veteran's claim of entitlement service connection for a neck disorder is entirely predicated on the notion that it is secondary to his already service-connected right shoulder disability. He is not alleging, and the evidence does not otherwise suggest, that a current neck disorder,, either was directly or presumptively incurred in service. For the reasons that follow, his claim shall be denied. First, the Board acknowledges that the Veteran currently suffers from a neck disorder, diagnosed as cervical spondylosis and degenerative disc disease (DDD) according to a June 2008 MRI. The Veteran a underwent VA examination in January 2009 which confirmed this diagnosis. He has also received treatment at VA Medical Centers (VAMCs) since December 2004 through October 2012, which include complaints of neck pain. The evidence of record does not support the Veteran's contentions of service connection for a neck disorder is secondary to his service-connected right shoulder disability. In fact, the January 2009 VA examiner specifically refutes this contention and states the neck disorder is more likely due to the Veteran's occupation or some other cause, and is less likely as not caused by shoulder arthritis and recurrent subluxation or dislocations of the right shoulder. There are no opinions in the claims file in contravention to this unfavorable determination by the January 2009 VA examiner. The Board acknowledges the Veteran is competent to report neck pain. However, his statements regarding whether his service-connected right shoulder disability caused or aggravated his cervical spondylosis and DDD ultimately involves a medical, not lay, determination, thus rendering his opinion less probative than the opinion of the VA medical examiner that was charged with making this necessary determination. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, the Veteran has not provided any explanation or assertion supporting his contention. Thus, as the most probative medical evidence concerning this determinative issue of causation or aggravation is against his claim, not supportive of it, his claim must be denied. Residuals of an Injury to the Head/Jaw The Veteran claims he suffers from residuals of an injury to the head/jaw sustained during his military service. In this particular case at hand, there is no competent and credible evidence of current disabilities pertaining to the Veteran's head/jaw. A current disability is the first requirement of any service connection claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this regard, the Board notes that a service treatment record does refer to a pre-service history of a head injury (with unconsciousness) as occurring in 1969, but there is no indication of what caused the head injury and no further treatment or complaints of any injury pertaining to the head/jaw following that record. The Veteran has received treatment at VAMC since December 2004. He also submitted private treatment records from Cook County Hospital, dated in December 2002. These records contain no evidence the Veteran has any residuals to the head/jaw as a result of an injury. The Board also notes that pain alone does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Veteran is certainly competent to proclaim having experienced pain associated with his head/ jaw during and since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of the claimed disability, including during service, even where not corroborated by contemporaneous medical evidence such as treatment records (STRs, etc). However, in this case he has not specifically described any current symptomatolgy pertaining to his claim, aside from pain. Thus, there is no competent lay evidence for the claimed disorder. Additionally, there is no medical evidence showing a current diagnosis for any disorder near his head/ jaw, aside from headaches, which has already been determined as not attributable to his military service. As noted above, no diagnoses are shown in any of the post-service treatment records. Entitlement to service-connected benefits is specifically limited to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no evidence of a current residuals of an injury to the head/jaw, service connection is not warranted. ORDER Entitlement to an effective date earlier than January 24, 2005 for the grant of service connection for a right shoulder disability is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for residuals of an injury to the head/ jaw is denied. REMAND The Veteran's right shoulder disability was last examined for VA compensation purposes in July 2010, over two years ago, in an attempt to determine whether this disability included any additional diagnoses. Upon physical examination, it was determined the Veteran suffers from myofascial pain syndrome, in addition to the already diagnosed recurrent dislocations and subluxations. Since that last examination in July 2010, the Veteran has continued to receive treatment at the Milwaukee, Wisconsin VA Medical Center, which the Veteran and his attorney claim indicates a worsening in the severity of his right shoulder. As such VA is required to afford him a contemporaneous VA examination, to assess the current nature, extent and severity of the service-connected right shoulder disability and all of the manifestations of that disorder. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Additionally, a medical opinion is needed concerning whether the Veteran is unemployable on account of his service-connected disabilities, which currently are: right shoulder disorder, with recurrent dislocations and subluxations with degenerative changes and myofascial pain syndrome, rated at 30 percent disabling; chronic sinusitis, rated at 30 percent disabling; and, residuals of right third metacarpal fracture, rated at 10 percent disabling. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter apprising him of the type of evidence and information needed to substantiate his derivative claim for a TDIU, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. 2. The RO should notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge, and/or who were contemporaneously informed about his right shoulder disability, or any impact on his ability to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. He should be provided an appropriate amount of time to submit this lay evidence. 3. Associate, physically or electronically with the file, any additional VA treatment records from the VA Medical Center in Milwaukee, Wisconsin, dated since October 2012. 4. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his right shoulder disability. The claims folder should be reviewed by the examiner prior to the examination. All tests and studies deemed helpful by the examiner, to include range of motion testing, should be conducted in conjunction with the examination. The examiner should also comment on any functional impairment that the Veteran experiences as a result of his right shoulder disability as well as the impact this disability has on his employability. A complete rationale for any opinion expressed should be included in the examination report. 5. Schedule a VA examination to obtain medical comment concerning whether the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment when considering his level of education, prior work experience and training, etc. The examination should include any diagnostic testing or evaluation deemed necessary, and the claims file should be reviewed by the examiner to ensure pertinent medical and other history is known. 6. Then adjudicate these remaining claims on appeal in light of all additional evidence. If the benefit is not granted to the Veteran's satisfaction, send him and his attorney a supplemental statement of the case (SSOC) and give them an opportunity to respond before returning the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs