Citation Nr: 1303364 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-16 351A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable disability rating for service-connected impingement syndrome of the right shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to July 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board denied the Veteran's increased initial rating claim in a decision issued in December 2011, and that portion of the decision was later vacated pursuant to an August 2012 United States Court of Appeals for Veterans Claims (Court) Order, which granted the parties' August 2012 Joint Motion for Remand (Joint Motion). The case has now been returned to the Board for further action in accordance with the mandates of the Joint Motion. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND In the August 2012 Joint Motion for Remand, the parties determined that, in determining that the Veteran was not entitled to a compensable rating for his right shoulder impingement syndrome, the Board erred by failing to address the applicability of 38 C.F.R. § 4.59 in light of the Veteran's complaints of painful motion. The parties noted that it is VA policy to recognize actually painful motion as warranting at least the minimum compensable rating. 38 C.F.R. § 4.59. That provision is applicable to any orthopedic disability. See Burton v. Shinseki, 25 Vet. App. 1 (2010); see also 38 C.F.R. § 4.59 (2012). Prior to adjudicating the Veteran's increased initial rating claim, the Board finds that further development is warranted. The Veteran was last afforded a VA examination to assess the severity of his service-connected right shoulder impingement syndrome in January 2007. At that time, the Veteran reported pain and stiffness in the right shoulder. Range of motion testing revealed right shoulder abduction and flexion each from 0 to 180 degrees, with pain from 160 degrees to 180 degrees. Internal and external rotation was from 0 to 45 degrees without any evidence of pain on motion. The examiner noted that there was no additional limitation of motion on repetitive use in any type of motion. Thereafter, during a February 2007 VA general medical examination, the Veteran did not report any right upper extremity symptoms on review of systems, and muscle/joints examination, extremity examination, and neurologic examination were all within normal limits. In his August 2007 notice of disagreement, the Veteran asserted that his right shoulder range of motion is altered by repetitive motion, and that the January 2007 VA examination did not "replicate repetitive motion and the limiting effects of such." Additionally, in his June 2008 substantive appeal, the Veteran reported that his right shoulder was also limited by fatigue, which was not reported during the January 2007 VA examination. Given that it has been six years since the Veteran's service-connected disability was last assessed for VA purposes, coupled with the Veteran's subsequent reports of additional symptoms not reported or exhibited during the January 2007 VA examination, the Board finds that he should be provided with a new VA examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support a decision on appeal for an increased rating). Additionally, on remand, the Veteran should be asked to identify any providers from whom he has received treatment relating to his right shoulder disability during the pendency of his appeal. Thereafter, the RO should readjudicate the Veteran's claim. In doing so, the RO must consider the application of the Court's holding in the case of Burton v. Shinseki, 25 Vet. App. 1 (2011), that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, provide that a claimant is entitled to at least the minimum compensable rating for the joint, and are not limited to arthritis. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file, either physically or electronically, outstanding private or VA treatment records identified by the Veteran, if any. 2. Then, schedule the Veteran for a VA joints examination to determine the current nature and severity of his right shoulder impingement syndrome. The Veteran's claims file should be provided to the examiner at the time of examination. The examiner should conduct all indicated range of motion studies and describe in detail all symptomatology associated with the Veteran's service-connected right shoulder disability. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right shoulder. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. The examiner should also offer an opinion regarding the effect the Veteran's right shoulder has on his employability. A complete rationale for any opinion offered should be provided. 3. Then, the Veteran's claim should be re-adjudicated. In readjudicating the Veteran's claim, the RO must consider the application of 38 C.F.R. § 4.59 (2012) and Burton v. Shinseki, 25 Vet. App. 1 (2011). If the Veteran is not awarded the full benefit sought, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. 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. 2012). _________________________________________________ MICHAEL E. KILCOYNE 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).