Citation Nr: 1314980	
Decision Date: 05/07/13    Archive Date: 05/15/13

DOCKET NO.  09-32 431A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent prior to February 19, 2009, for recurrent right shoulder dislocation with osteoarthritis and chronic tears.

2.  Entitlement to an evaluation in excess of 30 percent since February 19, 2009, for recurrent right shoulder dislocation with osteoarthritis and chronic tears.

3.  Entitlement to an effective date earlier than February 19, 2009, for the assignment of a 30 percent disability evaluation for grant of service connection for recurrent right shoulder dislocation with osteoarthritis and chronic tears.

4.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

P. Olson, Counsel


INTRODUCTION

The Veteran had active military service from January 1943 to February 1946.

This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

In March 2013, the Veteran testified at a Travel Board hearing.  A transcript of that hearing is of record.

The record before the Board can reasonably be construed to include a request for a TDIU.  The Court in Rice v. Shinseki, 22 Vet. App. 447 (2009) noted that a request for TDIU is not a separate claim for benefits and is best analyzed as a request for an appropriate disability rating as part of the claim for increased compensation.  In this case, the RO has not had the opportunity to determine whether the Veteran meets the criteria for a TDIU.  As such, the Board finds that it is appropriate to separate the adjudication of the schedular disability rating for the Veteran's service-connected right shoulder disability from the adjudication of TDIU.  See Rice, at 455, n.7 (2009) (noting that is permissible for the Secretary to bifurcate TDIU from the adjudication of an increased rating claim in appropriate circumstances).

The issue of entitlement to nonservice-connected pension benefits has been raised, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to an evaluation in excess of 30 percent since February 19, 2009, for recurrent right shoulder dislocation with osteoarthritis and chronic tears and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  On April 25, 2008, the RO received the Veteran's most recent claim for increased evaluation for service-connected disabilities.  There were prior final ratings that had assigned disability ratings.

2.  Prior to February 19, 2009, the clinical evidence of record did not demonstrate right shoulder ankylosis, limitation of motion of the right arm to 25 degrees from side, flail shoulder, flail joint, fibrous union of the humerus, recurrent dislocation of the humerus at scapulohumeral joint, or malunion of the humerus.


CONCLUSIONS OF LAW

1.  Prior to February 19, 2002, the criteria for an evaluation in excess of 20 percent for recurrent right shoulder dislocation with osteoarthritis and chronic tears were not been met or approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5203-5201 (2012).

2.  The criteria for an effective date prior to February 19, 2002, for the assignment of a 30 percent disability evaluation for recurrent right shoulder dislocation with osteoarthritis and chronic tears have not been met.  38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Codes 5203-5201 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  

With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

With respect to increased rating claims, section 5103(a) requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009). 

VA has met all statutory and regulatory notice and duty to assist provisions.  Letters dated in June 2008 and June 2009 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473.  Together, the letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates.  Both letters specifically advised the veteran that he should tell VA about or give to VA information that may affect how VA assigns a disability evaluation included statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. 

Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ).  For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.  

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file.  

Moreover, during the March 2013 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The Veteran was accorded a VA examination in July 2008.  38 C.F.R. § 3.159(c)(4).  The July 2008 VA examiner addressed the severity of the Veteran's right shoulder disability in conjunction with a physical examination of and interview with the Veteran.  The July 2008 VA examination report is thorough; thus this examination is adequate upon which to base a decision. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) 

Increased Rating

The Veteran seeks higher disability evaluations for his service-connected recurrent right shoulder dislocation with osteoarthritis and chronic tears.  At the time the Veteran filed his claim for an increased evaluation in April 2008, a noncompensable evaluation was in effect for residuals of dislocation of the right shoulder.  By rating decision dated in January 2009, a 20 percent evaluation was assigned effective on the date of claim, April 25, 2008; and by rating decision dated in August 2009, a 30-percent evaluation was assigned effective February 19, 2009, the date of Primary Care Note which noted right shoulder with limited abduction 70 degrees.

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  "Staged" ratings, however, are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran's service-connected right shoulder disability is currently rated as 20 percent disabling prior to February 19, 2009, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5203-5201 (2012).  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27.

Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 (2012).  A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes.  In the instant case, the Veteran's right shoulder is considered the major upper extremity. 

Diagnostic Code 5200 (2012) rates favorable ankylosis of the major scapulohumeral joint with abduction to 60 degrees, reaching the mouth and head, as 30 percent disabling. Intermediate ankylosis, between favorable and unfavorable, warrants a 40 percent evaluation; and unfavorable ankylosis with abduction limited to 25 degrees is assigned a 50 percent evaluation. 

Limitation of motion of the major arm to shoulder level warrants a 20 percent evaluation.  Motion to midway between the side and shoulder level warrants a 30 percent evaluation.  Finally, motion no more than 25 degrees from the side warrants a 40 percent evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). 

Normal (full) range of motion of the shoulder is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees.  38 C.F.R. § 4.71, Plate I (2012). 

Under Diagnostic Code 5202 (2012), for impairment of the humerus in the major arm, a 20 percent evaluation is warranted when there is malunion with moderate deformity.  A 30 percent evaluation is warranted for malunion with marked deformity.  Also under Diagnostic Code 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent evaluation is warranted with infrequent episodes, and guarding of movement only at shoulder level; a 30 percent evaluation is warranted when there are frequent episodes and guarding of all arm movements; a 50 percent evaluation is warranted for fibrous union of the minor arm; a 60 percent evaluation is warranted for nonunion (false flail joint) of the minor arm; and an 80 percent evaluation is warranted for loss of head of (flail shoulder) the minor arm. 

Diagnostic Code 5203 (2012) provides that in cases of clavicular or scapular impairment, with dislocation, a 20 percent rating is warranted where either the major or minor arm is involved.  Nonunion of the clavicle or scapula with loose movement shall be assigned a 20 percent evaluation, while nonunion without loose movement warrants a 10 percent evaluation.  Malunion of the clavicle or scapula may be assigned a 10 percent evaluation, or may be rated based on impairment of function of the contiguous joint. 

When evaluating disabilities of the musculoskeletal system under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion.  Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example.  38 C.F.R. § 4.40 (2012).

The provisions of 38 C.F.R. §§ 4.45  and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations.  The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups.  38 C.F.R. §§ 4.40 , 4.45, 4.59 (2012); Johnson  v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206   (1995). 

VA treatment records from January 2008 to July 2008 show normal range of right shoulder motion.  

At the July 2008 VA examination, the Veteran reported chronic pain and stiffness in his right shoulder with painful movement in any direction.  The Veteran reported taking Darvocet for pain and Xanax to help him sleep but noted that he did not like taking them because they made him feel "funny" in the head and tired.  The Veteran also had a steroid injection the previous month but stated that it did not relieve his pain.  The Veteran also reported weakness and flare-ups occurring daily and lasting three hours.  The Veteran stated that during flare-ups of pain, he avoided using his right arm.  The Veteran denied deformity, giving way, instability, episodes of dislocation or subluxation, effusion, and inflammation.

Physical examination of the right shoulder demonstrated flexion from zero to 150 degrees with pain at 140 degrees with an additional 20 degrees loss of flexion (130 degrees) against strong resistance and after repetitive use; abduction from zero to 95 degrees with pain at 85 degrees with an additional 10 degrees loss of abduction (85 degrees) against strong resistance and after repetitive use; external rotation from zero to 65 degrees with pain at 55 degrees with an additional 10 degrees loss of external rotation (55 degrees) against strong resistance and after repetitive use; and internal rotation from zero to 90 degrees without pain and without additional loss of internal rotation against strong resistance and after repetitive use.  The examiner noted that there was no loss of bone or part of a bone, no recurrent shoulder dislocations, no inflammatory arthritis, and no joint ankylosis.  MRI of the right shoulder showed moderate osteoarthritis of the AC Joint and Glenohumeral joint, partial tear of the subscapularis and biceps tendon, chronic tear of the superior and possibly anterior labrum, and small synovial cyst adjacent posterior labrum.       
 
The Board has considered whether a higher evaluation is warranted under any of the diagnostic codes for evaluating shoulder and arm disability.  Prior to February 19, 2009, however, there is no evidence of ankylosis in the right shoulder to support a higher rating under Diagnostic Code 5200, no evidence of right shoulder motion midway between side and shoulder level to support a higher rating under Diagnostic Code 5201, no evidence of flail shoulder, false flail joint, or other humeral abnormality to support a higher rating under Diagnostic Code 5202, and no evidence of dislocation or nonunion of the left humerus, clavicle or scapula to support a higher rating under Diagnostic Code 5203. 

Even when taking into consideration the Veteran's complaints of weakness and daily flare-ups as well as demonstrated additional limited motion after repetitive use, the Board finds that the Veteran's disability did not warrant an evaluation in excess of the 20 percent rating prior to February 19, 2009.  See 38 C.F.R. §§ 4.40 and 4.45; Johnson, 9 Vet. App. at 7 and 10; DeLuca, 8 Vet. App. at 202.  The evidence does not indicate that the limitation of motion more nearly approximates limitation of right shoulder motion limited to midway between side and shoulder level.  Therefore, a rating in excess of 20 percent prior to February 19, 2009, is not warranted. 

Applying all of the appropriate diagnostic codes, the objective assessment of the Veteran's service-connected right shoulder disability suggests that he does not have sufficient orthopedic symptoms so as to warrant an evaluation in excess of 20 percent under any of the Diagnostic Codes available for the shoulder.  There are no identifiable periods of time during which the Veteran's right shoulder disability has been shown to be disabling to a degree that would warrant disability evaluation in excess of 20 percent, and thus higher "staged ratings" are not warranted. 

The Board is aware that an extraschedular rating is a component of an increased rating claim.  Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1) (2012).  If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable.  Thun, citing 38 C.F.R. § 3.321(b)(1) (2008).  In the present case, the Board finds no evidence that the Veteran's service-connected right shoulder disability prior to February 19, 2009, presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) . 

The criteria pertaining to shoulder disabilities in the Rating Schedule focus on limitation of arm motion; dislocation, malunion, and nonunion of humerus, clavicle, and scapula; and other impairment of the humerus such as fibrous union and flair shoulder. 38 C.F.R. § 4.71a, Diagnostic Codes 5200 to 5203.  As the Veteran demonstrated limitation of motion due to pain and weakness, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted.  Id.  

Effective Date

The Veteran claims that he is entitled to an earlier effective date for the assignment of a 30 percent disability evaluation for his service-connected shoulder disorder.  In part he has contended that the 30 percent rating should be assigned from 1946. 

Review of the record reveals that service connection was initially granted and a 20 percent rating was awarded as of February 1946.  In 1954, the rating was reduced to noncompensably disabling.  Rating actions that assigned these ratings were unappealed and are final.  Thereafter, following a claim for an increase, a 20 percent rating was assigned from April 25, 2008 and the 30 percent rating as of February 19, 2009.

The effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400(o)(1) (2012).  The effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date.  38 U.S.C.A. § 5110(b)(2) (West 2002 & Supp. 2011); 38 C.F.R. § 3.400(o)(2) (2012). 

In general, three possible dates may be assigned depending on the facts of a case, (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1) (2012)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2) (2012)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2) (2012)).  See Harper v. Brown, 10 Vet. App. 125, 126 (1997). 

Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred.  38 C.F.R. §§ 3.155, 3.400(o)(2) (2012). 

If a Veteran files a claim for compensation with VA, and the claim is disallowed, he has the right to appeal that denial to the Board.  See 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012).  If the Veteran does not perfect an appeal, however, the rating decision becomes final.  See 38 C.F.R. §§ 20.302(a) , 20.1103 (2012). 

By rating decision dated in April 2002, entitlement to a compensable evaluation was denied.  The Veteran did not appeal this decision.  The next communication from the Veteran was a VA Form 21-4138, Statement in Support of Claim, received on April 25, 2008, requesting an increased evaluation for his service-connected disabilities.  After April 2002 and until April 2008, the record is absent any request for adjustment in disability rating for any disability.  As such, the date of claim is April 25, 2008.

The next inquiry is when did the Veteran's recurrent right shoulder dislocation with osteoarthritis and chronic tears meet the criteria for a 30 percent disability evaluation.  

As noted above, however, prior to February 19, 2009, however, there is no evidence of ankylosis in the right shoulder to support a higher rating under Diagnostic Code 5200, no evidence of right shoulder motion midway between side and shoulder level to support a higher rating under Diagnostic Code 5201, no evidence of flail shoulder, false flail joint, or other humeral abnormality to support a higher rating under Diagnostic Code 5202, and no evidence of dislocation or nonunion of the left humerus, clavicle or scapula to support a higher rating under Diagnostic Code 5203.  In addition, even when taking into consideration the Veteran's complaints of weakness and daily flare-ups as well as demonstrated additional limited motion after repetitive use, the evidence does not indicate that the limitation of motion more nearly approximated limitation of right shoulder motion midway between side and shoulder level prior to February 19, 2009.    

It is noted that to assign an effective date to 1946, prior ratings would have to be dealt with.  There have been no allegations of clear and unmistakable error in prior ratings, and that matter has not been raised by the appellant or his representative.


ORDER

Entitlement to an evaluation in excess of 20 percent prior to February 19, 2009, for recurrent right shoulder dislocation with osteoarthritis and chronic tears is denied.

Entitlement to an effective date earlier than February 19, 2009, for the assignment of a 30 percent disability evaluation for grant of service connection for recurrent right shoulder dislocation with osteoarthritis and chronic tears is denied.


REMAND

With respect to the issue of entitlement to an evaluation in excess of 30 percent since February 19, 2009, for recurrent right shoulder dislocation with osteoarthritis and chronic tears, the Board notes that the Veteran underwent VA examination in February 2012.  In March 2012, VA received correspondence from the Veteran alleging that the physician who conducted the February 2012 VA examination did not take measurements for the right shoulder.  

In addition, in June 2009, the Veteran reported that it was uncomfortable not to have his arm in a sling or near his body, that he had limited motion due to pain and was having pain in adjacent muscles in his neck, back, and arm.  In addition, the Veteran reported occasional tingling in his right hand.  At the February 2012 examination, the Veteran demonstrated 2/5 muscle strength in his right shoulder on abduction and flexion.  However, the VA examiner did not evaluate the Veteran's right upper extremity for any neurological impairment.

The Veteran's representative, at the Travel Board hearing, essentially argued that impairment at the right shoulder was so bad that the Veteran had the equivalent of the loss of use of an extremity.  Appellant asserts that he has such pain as to be unable to use the right upper extremity to dress.  Further evaluation is indicated in view of these contentions.  

In light of the Veteran's complaints regarding the February 2012 examination and in order to assess any neurological impairments caused by his service-connected right shoulder disability, the Veteran should be scheduled for an addition VA examination by the appropriate medical professionals to determine the current severity of his service-connected right shoulder disability.  

With respect to the issue of entitlement to a TDIU, as noted above, a request for TDIU has been reasonably raised by the evidence of record.  Rice, 22 Vet. App. at 447.   The TDIU claim, however, has not been adequately developed for Board review.  Consideration should be on a schedular or extraschedular basis, as appropriate.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)
 
1.  The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his recurrent right shoulder dislocation with osteoarthritis and chronic tears that is not evidenced by the current record.  If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file.  These records should then be obtained and associated with the claims folder.  The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue.  In addition, the Veteran should be requested to provide up-to-date information concerning his employment and educational history.  Specifically, the Veteran should submit any other evidence, such as employment records or statements from employers and physicians, supporting his contention that he is incapable of maintaining employment due to his service-connected disabilities. 

2.  The Veteran should be afforded a VA examination to ascertain the severity of his recurrent right shoulder dislocation with osteoarthritis and chronic tears.  The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished.

The examiner should also identify all neurological manifestations of the Veteran's service-connected right shoulder disability, identify all nerve(s) involved and degree of impairment to include all symptoms and manifestations (whether the involvement is only sensory (neuralgia), or if it is characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, constant pain (neuritis) as well as a characterization of the symptoms as to whether they represent complete paralysis or incomplete paralysis.  All functional limitations should be set out.  It should be indicated whether the impairment of the shoulder causes muscle atrophy, whether there is impairment in the function of the elbow or hand, and any other impairment associated with the shoulder should be set out.

The examiner should also provide an describe the effect of the Veteran's service-connected right shoulder disability would have on his ability to work.  A complete rationale should be given for all opinions and conclusions expressed.

3.  The case should be reviewed on the basis of the additional evidence.  Consideration of a TDIU should also be undertaken, complete with all notice and development indicated.  Consideration on a schedular or extraschedular basis is warranted.  If the benefit sought is not granted in full, the Veteran 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 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).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs