Citation Nr: 1322341 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-48 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine with right lumbar radiculopathy prior to October 6, 2010, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from March 1964 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2009 and October 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse appeared and testified at a Board video conference hearing held before the undersigned Veterans Law Judge in October 2012. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that, after receiving the testimony of the Veteran and his spouse, additional development is necessary in order to provide a full and fair adjudication of his claims. Service Connection for Right Shoulder Disorder The Veteran testified that he injured his right shoulder in service in 1965 in the same incident in which he injured his low back. From what can be gleaned from his testimony, this incident occurred shortly after the Veteran arrived in Vietnam. One night, while sleeping in his upper bunk, his base was mortared and he was thrown from the back injuring his low back and right shoulder. The Veteran testified that he received treatment in service for his right shoulder at that time. The Board notes that the service treatment records do show that, in October 1965, the Veteran was seen for injury to the right hip and thigh received from a fall from his bunk. These medical records, however, fail to show the Veteran received any treatment for his right shoulder. The Veteran and his spouse further testified that the Veteran first sought treatment for right shoulder problems after service in either 1992 or 1993 at the Bay Pines VA Medical Center. The VA outpatient treatment records from the Bay Pines VA Medical Center are associated with the claims file from January 1999 through February 2010. The Board notes that these records do not show a diagnosis of a right shoulder disorder until November 2005 when the Veteran was seen with complaints of right shoulder pain for six months worsened over the prior week. However, the claims file does contain the report of X-rays taken in June 1993 of the right shoulder, which is consistent with the Veteran's testimony that he initially sought treatment in 1992 or 1993. However, no outpatient treatment records for this period of time have been associated with the claims file. The Board notes that, as the Veteran was an employee at the Bay Pines VA Medical Center for many years, his occupational medical record has also been associated with the claims file and provides occupational medicine records from 1982 through 1998. These records, however, fail to demonstrate any complaints of or treatment for the Veteran's right shoulder. Consequently, there appears that there may be outstanding treatment records from 1993 from the Bay Pines VA Medical Center for treatment relating to the Veteran's right shoulder. Furthermore, since there are no outpatient records in the claims file between 1993 and January 1999, there is no way to conclude that there was no additional treatment during that period of time. Consequently, VA outpatient treatment records from 1993 through 1998 from the Bay Pines VA Medical Center should be associated with the claims file on remand. Finally, the Board notes that the Veteran has never been provided with a VA examination related to this claim. The Board finds that, based on the medical evidence and the hearing testimony, sufficient evidence has been submitted to require a VA examination be provided and a medical nexus opinion be obtained. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Increased Disability Rating for Degenerative Disc Disease of Lumbar Spine with Right Lumbar Radiculopathy Initially the Board notes that the Veteran and his spouse testified that he receives all his medical treatment at the VA Medical Center in Bay Pines, Florida, or at the Outpatient Clinic in Fort Myers, Florida (which the Board notes is part of the Bay Pines VA Healthcare System). Furthermore, they testified that the Veteran's low back disability has worsened to the point that he stays in bed most of the time because of his low back pain and his fear of falling. The last VA treatment records in the claims file are from February 2010, more than three years ago. None of these treatment records demonstrate that the Veteran was a fall risk due to his lumbar spine disability or any report that he stays in bed all the time because of his lumbar spine disability. Consequently, on remand, treatment records relating to the treatment of the Veteran's lumbar spine disability since February 2010 should be associated with his claims file. Finally, the Board notes that the Veteran was examined for his lumbar spine disability in May 2009 and October 2010. The Board finds that neither of the examination reports indicate the nature and severity of the symptoms reported by the Veteran and his spouse at the October 2012 hearing. Consequently, the testimony of the Veteran and his spouse at the October 2012 hearing appears to indicate that his lumbar spine disability has worsened since the last examination. As such, it is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his lumbar spine disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. In conducting the examination, since the Veteran testified to radiculopathy symptoms (and the medical evidence of record currently shows a diagnosis of right lower extremity radiculopathy), in addition to a spine examination to determine the orthopedic manifestations of his lumbar spine disability, a neurology examination should also be scheduled to thoroughly evaluate the current severity of the any neurologic manifestations of the service-connected lumbar spine disability. 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. Associate with the Veteran's claims file outpatient treatment records from the Bay Pines VA Healthcare System (VA Medical Center) for the periods of 1993 through 1998 and from February 2010 to the present, especially any treatment records showing treatment for the Veteran's right shoulder or his lumbar spine/low back. 2. After all additional available evidence has been associated with the claims file, schedule the Veteran for the following VA examinations. The claims file must be provided to each examiner for review in conjunction with the examination, and such review should be noted in the examination report. Joints examination relating to claim for service connection for a right shoulder disorder - After reviewing the file and conducting any necessary testing, the examiner should render a diagnosis as to all current disorders the Veteran has involving the right shoulder. Thereafter, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that each current disorder found on examination is related to any disease or injury incurred during service, especially whether it is related to the injury reported by the Veteran that occurred in October 1965 when he fell from his top bunk. The examiner should consider the report of an onset in service and/or symptoms since service, if any, in rendering the requested opinion. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran's theory of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) Spine and neurology examinations relating to claim for an increased rating for service-connected degenerative disc disease of the lumbar spine with right lumbar radiculopathy - On examination, the examiner should elicit information as to the frequency, duration, and severity of any associated symptomatology (related to both orthopedic and neurologic manifestations), and loss of function in daily activities, including work and physical activity, caused by the Veteran's service-connected lumbar spine disability. On orthopedic examination of the thoracolumbar spine, the examiner should determine the limitation of motion, if any, and discuss whether there is pain on movement, swelling, tenderness, deformity or atrophy of disuse. The examiner should also determine whether there is any evidence of ankylosis, abnormal curvature of the spine, muscle spasm, or other symptoms consistent with lumbar spine disabilities. Repetitive motion testing should be conducted, and the examiner should comment on whether there is additional functional loss due to weakness, fatigability, incoordination, or pain on movement. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. On neurological examination, all necessary tests and studies should be conducted in order to ascertain the all neurologic manifestations of the Veteran's service-connected lumbar spine disability and their current severity. The examiner must specifically identify the nerve or nerves involved. The examiner must also identify the symptoms of each neurologic manifestation, especially the already recognized right lumbar radiculopathy, and indicate whether there is complete or incomplete paralysis and, if the paralysis is incomplete, provide an opinion as to whether the incomplete paralysis is mild, moderate, or severe. 3. Thereafter, the Veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).