Citation Nr: 1318512 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-04 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess 10 percent for residuals of a left clavicle fracture with deformity, prior to December 30, 2010. 2. Entitlement to a rating in excess of 20 percent for residuals of a left clavicle fracture with deformity, on and after December 30, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from February to June 1987 and active duty for training from June 13 to June 27, 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, D.C. REMAND In April 2013, the Board received additional evidence from the Veteran's representative that requires a remand of the issue of entitlement to a rating in excess of a 20 percent rating for residuals of a left clavicle fracture, on and after December 30, 2010. The newly-received evidence is a physician's "Disability Certificate" that indicates that the Veteran re-injured his left shoulder in February 2013, and became totally incapacitated for a month. The Veteran requested a temporary total rating under the provisions of 38 C.F.R. § 4.30. The Veteran's representative has not waived the Veteran's right to initial RO consideration of the new evidence. This document also indicates a material change in the severity of the service-connected residuals of a left clavicle fracture. Thus, a new examination is necessary. The issue of entitlement to a rating in excess of 10 percent for residuals of a left clavicle fracture prior to December 30, 2010, is being deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review[Board] decisions in a piecemeal fashion"). The case is therefore remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. 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, preferable an orthopedist, to determine the severity of his service-connected residuals of a left clavicle fracture. 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 pertinent symptomatology must be recorded. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected residuals of a left clavicle fracture. 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 residuals of a left clavicle fracture. Any dislocation and/or malunion of the clavicle found on examination must be reported. If nonunion of the clavicle is found on examination, the examiner must indicate whether the nonunion is with or without loose motion. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the 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. The VA examination report must be reviewed by the RO 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. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated, to include the issue of a temporary total rating under the provisions of 38 C.F.R. § 4.30 from February 11, 2013 to March 12, 2013. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for 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 Department of Veterans Affairs