Citation Nr: 1320507 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-10 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to an increased rating for right shoulder acromioclavicular degenerative joint disease, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from January 1961 to January 1965. This matter comes to the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which denied entitlement to an increased rating higher than 20 percent for the Veteran's right shoulder acromioclavicular degenerative joint disease. The RO confirmed the denial in an October 2006 rating decision. Although the Veteran filed a notice of disagreement in November 2006 referencing the October 2006 rating decision, given that the notice of disagreement was within one year of the previous denial in April 2006, the Board will construe the Veteran's notice of disagreement as appealing the April 2006 rating decision, as this would be more favorable to the Veteran in terms of the effective date for any increased rating assigned. Additionally, the Veteran submitted buddy statements in April 2006 within one year of the April 2006 rating decision noting that they had observed the Veteran having difficulty working as a result of his right shoulder disability. These statements constitute new and material evidence and would be considered as part of the previous claim that was filed in January 2006. 38 C.F.R. 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). For these reasons the correct rating decision on appeal is in April 2006. In June 2007, the Veteran testified before the undersigned Acting Veterans Law Judge at a Board videoconference hearing at the RO. 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 The Board remanded this case in September 2007 so that the RO could provide an examination to assess the present severity of the Veteran's right shoulder disability. Thereafter, an examination was provided in October 2007. It appears that since that time there have been medical records and statements from the Veteran submitted that have not been associated with the claims file, nor have they been associated with Virtual VA records. Virtual VA records include multiple rating decisions addressing the right shoulder in 2009, which reference multiple VA treatment records and claims by the Veteran that have not been associated with the claims file or added to the Virtual VA records. Also, unfortunately, given the six years that has passed since the last examination in October 2007, and the medical evidence that has not been associated with the claims file or in the Virtual VA records since that time, the October 2007 VA examination report is no longer adequate to rate the claim. Virtual VA records note that the Veteran has since undergone surgery at the Black Hills VAMC for his right shoulder in December 2008. Although the surgical records for this procedure are not provided, they are referenced in a March 2009 rating decision, in which the RO granted a total temporary rating for the right shoulder surgery. The RO granted service connection for a surgical scar associated with the right shoulder surgery in an April 2009 rating decision. The RO also has adjudicated whether the right shoulder disability warrants an increased rating in rating decisions dated from April 2009 to September 2009, as well as a claim for a TDIU. The fulfillment of the duty to assist includes the conduct of a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). However, the mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). As the medical evidence suggests that the Veteran's right shoulder disability has increased in severity since it was last evaluated in October 2007, another examination is warranted to address the present severity of the right shoulder disability. Also, all relevant treatment records and statements from the Veteran, including from any temporary file that the RO has created, need to be associated with the claims file or in the Virtual VA records. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file or Virtual VA records any temporary file that has been created by the RO to include all outstanding claims, statements, and evidence submitted by the Veteran, as well as any outstanding adjudicative actions, since the November 2007 supplemental statement of the case. 2. Make arrangements to obtain copies of the Veteran's treatment records from the VA treatment facilities in Black Hills, Fort Meade, and Hot Springs, South Dakota addressing the right shoulder disability, dated since September 2006, including but not limited to the December 2008 right shoulder surgery at Black Hills VAMC. 3. Ask the Veteran to identify all private medical care providers that have treated him for this right shoulder disability since June 2006. Make arrangements to obtain all records that he adequately identifies. 4. After the above information has been associated with the record, schedule the Veteran for an appropriate VA examination of his right shoulder. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, should be performed. The examiner should identify and describe in detail all impairment attributable to the Veteran's service-connected right shoulder disability. The examiner also should do the following: (a) Conduct range of motion testing of the right shoulder, specifically noting whether - upon repetitive motion of the Veteran's right shoulder - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the right shoulder is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. (b) State whether there is any ankylosis in the right scapulohumeral articulation, and if so, the degree of ankylosis including whether it is favorable or unfavorable. (c) State whether there is fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder). (d) State whether there is any malunion of the humerus with moderate or marked deformity. (e) State whether there is recurrent dislocation of the scapulohumeral joint, and if so, discuss the frequency of episodes and guarding of arm movements. (f) State whether there is any associated scarring (to include as a result of the December 2008 surgery) of the right shoulder; and if so, describe whether there is any impairment associated with the scarring, whether the scars are adherent to underlying tissue, whether the scars are tender to palpation or unstable, and the approximate measurements of the scars. (g) Identify any neurological pathology related to the service-connected right shoulder disability, and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved. (h) Provide an opinion as to whether the Veteran's service-connected right shoulder disability renders him unable to secure or follow a substantially gainful occupation. In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Next, review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 6. Finally, readjudicate the claim on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). _________________________________________________ J. CONNOLLY Acting 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).