Citation Nr: 1311280 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-11 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating in excess of 20 percent for left shoulder impingement. 2. Entitlement to an increased disability rating in excess of 10 percent for residuals of shell fragment wounds of the lumbar sacral spine. 3. Entitlement to a compensable disability rating for residuals of a fracture of the right fifth metacarpal. 4. Entitlement to a compensable disability rating for hypertensive vascular disease. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1960 to January 1987. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran filed a notice of disagreement (NOD) with these determinations in July 2007, and timely perfected his appeal in March 2009. The Veteran requested a Travel Board hearing on the March 2009 Substantive Appeal, which was scheduled for October 25, 2012. However, prior to the scheduled hearing date, the Veteran submitted an October 2012 written statement withdrawing that hearing request. 38 U.S.C.A. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on 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 A review of the record discloses that further development is necessary prior to the adjudication of the Veteran's claims of increased disability ratings for left shoulder impingement syndrome, residual fragment wounds of the lumbar sacral spine, fracture of the right fifth metacarpal, and hypertensive vascular disease. The Veteran contends that his left shoulder impingement syndrome, residual fragment wounds of the lumbar sacral spine, fracture of the right fifth metacarpal, and hypertensive vascular disease are worse than the disability evaluations currently assigned. The Veteran was last given a VA examination in January 2009 in order to establish the severity of his above mentioned service-connected disabilities. The Veteran reported on the March 2009 Substantive Appeal that the VA examination report noted that he had full range of motion of his right hand and the examination was essentially normal; however, he stated that this was untrue. He pointed out that the x-ray noted deformity of the distal interphalangeal joint. Additionally, he noted that his hypertension contributed to his stroke. In this particular case, the January 2009 VA examination is too remote in time to address the current severity of the Veteran's service-connected left shoulder impingement syndrome, residual fragment wounds of the lumbar sacral spine, fracture of the right fifth metacarpal, and hypertensive vascular disease. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand these matters to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his service-connected left shoulder impingement syndrome, residual fragment wounds of the lumbar sacral spine, fracture of the right fifth metacarpal, and hypertensive vascular disease. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Lastly, the Board finds that a remand is also necessary to obtain any outstanding VA and private treatment records with respect to the Veteran's increased rating claims. While the VA claims file contains VA treatment records through June 2008 and private treatment records through August 2007, it is unclear whether the Veteran continued to seek any VA or private treatment for his claimed conditions after that time. As these VA and private treatment records may contain information pertinent to his claims, they are relevant and should be obtained. See 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Veteran should be contacted to provide any additional treatment records in his possession or authorize VA to obtain those records on his behalf. Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any available outstanding VA treatment records dated after June 2008. Any response received should be memorialized in the Veteran's claims file. Additionally, the AMC/RO should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed left shoulder, right fifth metacarpal fracture, hypertensive vascular disease, and lumbar sacral spine. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2) After the foregoing, the Veteran should be scheduled for a VA orthopedic examination to determine the current level of severity of his left shoulder disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All tests deemed appropriate by the examiner, including X-rays and/or MRI studies, should be conducted. Specifically, the VA orthopedic examiner should address the following: A. Set forth all current complaints, findings, and diagnoses pertaining to the Veteran's service-connected left shoulder disorder. B. If manifested by ankylosis of scapulohumeral articulation, (such that the scapula and humerus move as one piece) state whether the ankylosis is favorable, unfavorable, or intermediate (between favorable and unfavorable). C. If manifested by other impairment of the humerus, state whether the disability is manifested by any of the following: malunion of the scalpulohumeral joint with marked deformity; recurrent dislocation of the scalpulohumeral joint with frequent episodes and guarding of all arm movements; fibrous union of the scalpulohumeral joint; false flail joint; or flail shoulder. D. If manifested by impairment of the clavicle or scapula, state whether the disability is manifested by any of the following: dislocation, nonunion with loose movement or without loose movement, or malunion. E. Provide complete range-of-motion and repetitive motion findings with respect to the Veteran's left shoulder. All ranges of motion should be expressed in degrees. The examiner should also be asked to determine whether the left shoulder exhibits weakened movement, excess fatigability, instability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202 (1995). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Additionally, the Veteran should be scheduled for a VA examination to determine the current level of severity of the residuals of shell fragment wounds of the lumbosacral spine. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted, to include x-rays. All pertinent pathology found on examination should be included in the evaluation report. The examiner should write a comprehensive report discussing the current severity of the Veteran's shell fragment wound residuals of the lumbar sacral spine, with particularity to the criteria for the appropriate diagnostic codes (5320). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Further, the AMC should schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected hypertension. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted. The examiner should write a comprehensive report discussing the current severity of the Veteran's hypertension, with particularity to the criteria for the appropriate diagnostic codes (7101). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5) In addition, the AMC should schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected fracture of the right fifth metacarpal. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted. The examiner should write a comprehensive report discussing the current severity of the Veteran's fracture of the right fifth metacarpal, with particularity to the criteria for the appropriate diagnostic codes (5227). Additionally, range of motion of the digit should be performed. Further, the examiner should note if there is ankylosis of the individual digit. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 7) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims. If a claim is denied, the AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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).