Citation Nr: 1311357 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 07-05 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for osteoarthritis of the left (minor) acromioclavicular joint. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1990 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board, among other things, remanded the issue on appeal for additional development in September 2010. 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 on his part. REMAND Although the issue on appeal has been previously remanded, the Board finds that further development is required for an adequate determination. A remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). In its September 2010 remand the Board requested that the Veteran be scheduled for a clinical examination to evaluate his service-connected osteoarthritis of the left acromioclavicular joint. The instructions for the examiner included that "[a]ll tests and studies deemed appropriate to assess the severity of this orthopedic disability should be conducted." Although the Veteran received an appropriate VA examination in October 2010, the examiner found a complex syndrome of left upper extremity restricted range of motion that was difficult to determine unless it was done via electromyelogram. It was further noted that the Veteran would also benefit from studies such as a magnetic resonance imaging (MRI) scan of his shoulder to determine the exact nature of his symptoms. As no such studies were conducted, further action is require for an adequate determination. For this reason, the Board finds additional development is required prior to appellate review. The Board also notes that a VA Form 21-4142 received from the Veteran in October 2009 noted left shoulder treatment with David N. Westerdahl, M.D., from January 3, 2006, to current. The claims file includes records from this physician dated in January 2006; however, the Veteran did not respond to VA correspondence dated in October 2009 which notified him that further VA assistance concerning attempts to obtain these records could not be made without properly executed authorization. While the claim is in remand status, the Veteran should again be requested to provide copies of any pertinent private treatment reports or to provide sufficient information for VA assistance. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issue on appeal. He should be specifically requested to either provide copies of any pertinent treatment records from Dr. David N. Westerdahl or to provide sufficient information for additional VA assistance in obtaining these records. After the Veteran has signed any necessary releases, all indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 2. Following completion of the above, the Veteran's claims file should be reviewed by the October 2010 VA examiner, or if the examiner is unavailable by an appropriate medical specialist, for clarification of the provided opinion as to the nature and severity of his service-connected osteoarthritis of the left acromioclavicular joint based upon additional diagnostic testing recommended by the October 2010 examiner. All indicated examinations, tests, or studies necessary for an adequate opinion must be conducted. An explanation must be provided if electromyelogram or MRI studies are found not to be currently necessary. Opinions should be provided based on the results of any additional examinations or studies, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant 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). _________________________________________________ BARBARA B. COPELAND 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).