Citation Nr: 1301694 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 08-38 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for status post surgery right shoulder with residuals of degenerative joint disease, currently assigned a20 percent disability evaluation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1993 to May 1998. He also served as a cadet at the United States Military Academy at West Point from September 1989 to May 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran provided testimony at a February 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran was afforded VA examinations in March 2006 and August 2007 in connection with his claim for an increased evaluation. However, he asserted at the February 2012 hearing that those examinations were inadequate. He also stated that he suffered daily recurrent dislocations of the right shoulder and indicated that his shoulder is "sliding out" depending on the activity. Such symptoms were not noted during the most recent VA examination in August 2007, which suggests that there may have been a material change in the severity of the disability. Under these circumstances, a remand for a new examination is appropriate. Therefore, the Veteran should be afforded another examination in connection with his claim for an increased evaluation to assess the current nature, extent, and severity of his service-connected disability. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination to ascertain the current severity and manifestations of his service-connected right shoulder disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected right shoulder disability. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees and indicate whether there is any form of ankylosis. He or she should also state whether there is any impairment of the humerus and impairment of the clavicle or scapula, and if so, provide the findings necessary under the rating criteria for such manifestations. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. The RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraph. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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. 2012). _________________________________________________ JESSICA J. WILLS 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).