Citation Nr: 1306013 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 07-26 029 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to an initial evaluation for right shoulder impingement syndrome with post-op acromioplasty and excision of the distal clavicle (previously rated as tendonitis) in excess of 10 percent prior to, and in excess of 20 percent from January 1, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from November 1998 to November 2004. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 decision by the RO which, in part, granted service connection for right shoulder tendonitis, rated 10 percent disabling from November 14, 2004, the day following discharge from service. 38 C.F.R. § 3.400(b)(2). The Veteran disagreed with the rating assigned giving rise to the current appeal. By rating action in October 2008, the RO assigned a 100 percent evaluation for convalescence from May 9, 2008, the date of surgery, and a 10 percent schedular evaluation from August 1, 2008. In March 2011, the Board, in part, remanded the appeal for additional development. Thereafter, by rating action in June 2011, the RO assigned a 100 percent convalescence rating following a second surgery on October 22, 2010, and subsequently assigned a 20 percent schedular evaluation effective from January 1, 2011. (See January 2012 rating action). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, in its March 2011 Remand, the Board directed that the Veteran be afforded a VA examination to determine the extent and severity of right shoulder disability. Of particular significance, the examiner was requested to include a discussion or analysis of the degree, if any, of resulting functional impairment of the right shoulder disability under the 38 C.F.R. §§ 4.40, 4.59, and the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). While the Board is cognizant of the fact that it may be difficult to provide a hypothetical estimate of the potential functional impairment due to pain on prolonged use or during flare-ups, the Board is, nonetheless, charged with the duty to request such an opinion, and to obtain an adequate response that, at the very least, includes a discussion as to why an opinion cannot be provided. Although the Veteran was examined by VA in April 2011, the examiner did not provide an estimate as to whether there was any additional functional impairment due to the factors set forth in DeLuca. Specifically, the examiner indicated that there was objective evidence of pain on repetitive motion, but that he was unable to test the Veteran to determine whether there was any additional range of motion loss due to his significant pain. There is also some confusion as to whether the examiner reviewed the entire record. That is, the examiner initially indicated that the claims file was reviewed. However, later in the report, he indicated that VA medical records were not reviewed. In this regard, the Board notes that VA outpatient notes beginning in November 2010, showed that the Veteran was instructed on various exercises to gain strength and range of motion in the right shoulder, and that he started exercising at home doing just a few repetitive movements. The PT notes showed steady improvement in his range of motion and strength with decreasing pain over the next few months. A VA orthopedic outpatient note dated in March 2011, showed that the Veteran had full flexion and abduction and could reach behind his back to the mid thoracic level. While the Veteran had some weakness in the shoulder girdle, he denied any shoulder pain. Given the Veteran's description of residual symptoms and the objective findings on the VA PT and outpatient notes from November 2010 to March 2011, the Board is unable to ascertain from the current evidence of record, whether his inability to perform repetitive motions on the April 2011 VA compensation examination was due to a flare-up of symptoms, worsening of the right shoulder disability, or a lack of effort. In any event, it is incumbent upon the examiner to at least attempt to offer an estimate of the degree, if any, of additional functional impairment due to pain, incoordination, fatigue, weakness, with flare-ups or on repetitive motion. Given the facts in this case, the Board finds that the April 2011 VA examination was inadequate and that another examination must be undertaken. The Board is required to discuss its reasons and bases for assigning a particular disability rating with reference to the criteria contained in the relevant diagnostic codes. It is not permitted to discuss factors outside the scope of the rating criteria, nor is it permitted to speculate on the presence or absence of the criteria on the basis of incomplete information. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). As the Board is precluded from reaching its own unsubstantiated medical conclusions and is instead, bound by the medical evidence of record on these matters, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. The AMC should take appropriate steps to obtain all of the Veteran's VA treatment records since March 2011, and associate them with the claims folder. 2. The Veteran should be scheduled for a VA examination to determine the extent and current severity of his right shoulder disability. All indicated tests and studies should be performed. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The orthopedic examiner should respond to the following: a) Note any limitation of motion in the right shoulder. b) Indicate whether the right shoulder exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations should be expressed in terms of the degree of additional loss of range of motion or favorable, intermediate or unfavorable ankylosis. c) Express an opinion on whether pain could significantly limit functional ability during flare-ups or when the right shoulder is used repeatedly over a period of time. These determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable, intermediate or unfavorable ankylosis due to pain on use or during flare-ups. d) Provide a detailed description of all scars resulting from the right shoulder surgery, and indicate whether any scars are superficial, painful, unstable, or limit function. 3. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. 4. Thereafter, the AMC should readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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).