Citation Nr: 1317360 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 07-01 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for left shoulder impingement syndrome, with acromioclavicular arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from January 1993 to April 1993 and from June 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO). The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND A review of the claims file reveals that further development on the matter of entitlement to an initial evaluation in excess of 20 percent for left shoulder impingement syndrome with acromioclavicular arthritis is warranted. A longitudinal review of the record revealed that the Veteran filed claims for entitlement to service connection for a left shoulder condition and a cervical condition with left upper extremity nerve involvement in November 2005. In an April 2006 rating decision, the RO granted service connection for left shoulder strain and assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5304, effective November 16, 2005. The RO also granted service connection for ulnar compressive neuropathy at the left elbow with numbness of the 4th and 5th digits and assigned a 10 percent evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8516, effective November 16, 2005. The Veteran filed a timely notice of disagreement in August 2006, in which he objected to the initially assigned 10 percent evaluation assigned to his left shoulder disorder. Fenderson v. West, 12 Vet. App. 119 (1999). Thereafter, in a March 2007 rating decision, the RO recharacterized the Veteran's service-connected left shoulder disability as left shoulder impingement syndrome with acromioclavicular arthritis and increased the evaluation to 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201, effective November 16, 2005. The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved that claim. AB v. Brown, 6 Vet. App. 35 (1993). The hyphenated diagnostic code in this case indicates that traumatic arthritis, under Diagnostic Code 5010, was the service-connected disorder, and limitation of arm motion, under Diagnostic Code 5201, was a residual condition. 38 C.F.R. §§ 4.27, 4.71a (2012). The Veteran continued to disagree with the assigned evaluation and filed a substantive appeal to the Board. In October 2007, the Veteran submitted evidence showing that he underwent left shoulder scope superior labrum from anterior to posterior repair on October 2, 2007. As a result, in February 2008, the Board assigned a temporary evaluation of 100 percent effective October 3, 2007, based on surgical or other treatment necessitating convalescence. An evaluation of 20 percent was then reinstated effective from January 1, 2008. In November 2012, the Board most recently remanded the Veteran's claim to obtain an additional VA examination, finding that evidence of record was unclear as to whether the Veteran's right arm or left arm was his dominant, major extremity. 38 C.F.R. § 4.69 (2012). The RO was instructed that the claims file and all records on Virtual VA must be made available to the examiner. The examiner was instructed that he or she must specify in the examination report that the claims file and Virtual VA records had been reviewed, to include identifying the dates encompassed by the Virtual VA records that were reviewed. After reviewing the December 2012 VA examination, the Board finds that the RO did not substantially comply with the November 2012 Remand directives. The December 2012 VA examiner simply indicated that the claims "folder" was reviewed and did not specify whether Virtual VA records had been reviewed, to include identifying the dates encompassed by the Virtual VA records that were reviewed. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, in the December 2012 VA examination report, the examiner clearly quantified the additional left shoulder limitation due to pain on motion, as well as following three repetitions of left shoulder range of motion testing. The Veteran reported that flare-ups impacted the function of his left shoulder, asserting that his left shoulder got limited to where he could not move it during flare-ups. The examiner further determined that the Veteran had functional loss and/or functional impairment of his left shoulder, indicating that the contributing factors of the disability were less movement than normal, weakened movement, excess fatigability, and pain on movement. Disabilities evaluated on the basis of limitation of motion require VA to consider functional impairment. 38 C.F.R. §§ 4.40, 4.45 (2012). In applying these regulations, VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). Here, the Board finds that the December 2012 VA examination report is inadequate, as examiner made no attempt to measure or estimate any additional limitation due to identified left shoulder weakened movement and excess fatigability, as well as during periods of flare-up of the Veteran's service-connected left shoulder disability. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The December 2012 VA examination report has been deemed inadequate for rating purposes, and given that the evidence of record is otherwise inadequate to properly adjudicate the claim, the Board finds that a remand is required in order to afford the Veteran another VA examination. Id.; see also Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). In light of the cumulative record discussed above, the RO should arrange for an additional VA medical examination to obtain pertinent findings concerning the functional impairment caused weakened movement and excess fatigability, as well as during flare-ups of the Veteran's service-connected left shoulder disability and to properly address the Board's Remand instructions. The claims file also reflects that the Veteran has received VA medical treatment for his service-connected left shoulder disability from the VA Medical Center (VAMC) in Minneapolis, Minnesota, and in St. Cloud, Minnesota; however, as the evidence of record only included searches for treatment records dated up to November 2010, any additional records from those facilities should be obtained. The claims file contained a VA document indicating that the RO had searched VA treatment records at St. Cloud VAMC and Minneapolis VAMC for the time period from November 9, 2007, through November 30, 2010, uploading all pertinent records into Virtual VA. The Board notes that Virtual VA contained VA treatment notes pertinent to the left shoulder dated in April 2009 from St. Cloud VAMC and dated in November and December 2007 from Minneapolis VAMC. However, the Board notes that the last December 2007 record from Minneapolis VAMC clearly revealed that the Veteran was to be seen for a follow-up appointment with new left shoulder films at that facility in four months. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). All outstanding VA records should be obtained and associated with the claims file. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to an initial evaluation in excess of 20 percent for left shoulder impingement syndrome with acromioclavicular arthritis. Regardless of the Veteran's response, the RO must obtain and associate with the claims file all of the Veteran's pertinent VA treatment records, to include all treatment records from the St. Cloud VAMC dated from April 2009 to the present and from Minneapolis VAMC dated from December 2007 to the present. If, after making reasonable efforts to obtain this information the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded a VA examination by a physician with appropriate expertise to determine the nature, extent, and severity of his service-connected left shoulder disability. All indicated studies, including x-rays and range of motion studies in degrees, must be conducted, and all findings must be reported in detail. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests must be accomplished. The examiner must conduct full range of motion studies on the service-connected left shoulder disability. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected left shoulder disorder. Furthermore, the examiner should state whether any pain associated with the left shoulder disability could significantly limit functional ability during flare-ups, noting the specific degree of additional range of loss of motion during flare-ups. Additional left shoulder findings such as less movement than normal, weakened movement, and excess fatigability clearly documented in the December 2012 VA examination must be discussed in making this determination. If such information cannot be feasibly determined, the examiner must explain why this information cannot be provided. A complete rationale for all opinions given must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review any medical examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).