Citation Nr: 1322489 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 06-06 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability rating in excess of 20 percent for service-connected arthritis of the left shoulder with rotator cuff tear and subluxation of the humeral head (referred to hereinafter as "left shoulder disability"). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The previously established 10 percent evaluation for the Veteran's left shoulder disability was increased to 20 percent therein. He appealed this determination, arguing that a higher evaluation was warranted. In June 2010, the Board remanded this matter for additional development. The Board denied an evaluation in excess of 20 percent for the Veteran's left shoulder disability in November 2011. Entitlement to a total disability rating based on individual unemployability (TDIU) due to this disability as well as his service-connected back and neck disability was remanded for additional development. It appears that such development has not as of yet been completed. In addition, the Veteran appealed the Board's decision regarding his left shoulder disability to the United States Court of Appeals for Veterans Claims (Court). Counsel for him as well as for VA requested that the pertinent portion of that decision be vacated and remanded in an August 2012 Joint Motion for Partial Remand (JMPR). The Court issued an Order granting the JMPR later that same month. As such, this matter once again is before the Board. It is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, at this time based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The Board noted in November 2011 that entitlement to service connection for a right shoulder disability, to include as secondary to the Veteran's left shoulder disability, had been raised by the record but had not been adjudicated yet by the Agency or Original Jurisdiction (AOJ). This remains true now. The Board therefore does not have jurisdiction over the issue. It accordingly is referred to the AOJ, which is the RO here, for appropriate action. REMAND The JMPR indicated that the Board did not provide adequate reasons and bases for its November 2011 denial of a rating in excess of 20 percent for the Veteran's left shoulder disability. Specifically, it was pointed out that this rating was pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5202, for other impairment of the humerus. Then it was noted that the Board did not discuss whether a separate rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003, for arthritis was warranted. The same was noted with respect to a separate rating pursuant to the Diagnostic Codes of 38 C.F.R. § 4.73 concerning muscle injuries. The Court's Order granted the JMPR. Compliance with the terms of the JMPR thus is required. Forcier v. Nicholson, 19 Vet. App. 414 (2006). However, discussion of whether these separate ratings are warranted cannot be undertaken by the Board at this time. The Board sincerely regrets the delay of a remand, but finds that more development is needed before the aforementioned discussion can occur. Such development is necessary to ensure that the Veteran is afforded every possible consideration. VA indeed has a duty to assist him in substantiating his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Reasonable efforts must be made by VA to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). When the existence of non-Federal (private) records is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2012). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2012). The claimant shall be notified if requested records, whether Federal or non-Federal, cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). To date, VA has obtained the Veteran's VA treatment records dated into April 2011. They document his receipt of ongoing treatment for his left shoulder. It thus is inferred that there may be pertinent VA treatment records dated from April 2011 to present. However, there is no indication that they have been requested by VA yet. Requests for any such records must be made. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA treatment records). The Veteran and his representative must be notified if the aforementioned requests are unsuccessful. No private treatment records have been obtained by VA to date. Yet the Veteran has submitted private treatment records concerning his left shoulder dated into October 2008. Accordingly, it is inferred that there may be pertinent private treatment record dated from October 2008 to present. To date, VA has not asked the Veteran to either submit any such records or to provide enough information to identify and locate them along with an authorization for their release to VA. This must occur. If the Veteran provides the information and authorization, an initial request for the records must be made. Follow-up requests as well as notification to him and his representative if they are unsuccessful also must be made as necessary. VA's duty to assist includes, in addition to the above, a mandate that any VA medical examination obtained be adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Hayes v. Brown, 9 Vet. App. 67 (1996). A VA medical examination is adequate when it allows the Board to perform a fully informed evaluation. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, it must describe the disability in sufficient detail. Stefl, 21 Vet. App. at 120; Ardison v. Brown, 6 Vet. App. 405 (1994). It also must be contemporaneous. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517 (1995); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Olson v, Principi, 3 Vet. App. 480 (1992); Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991). The current state of the disability must be portrayed, in other words. In December 2003, August 2005, January 2006, and July 2010, the Veteran underwent VA medical examinations pertaining to his left shoulder. The last of these examinations was conducted three years ago and thus is of considerable age. Neither the Veteran nor his representative has specifically contended that his left shoulder disability has gotten more severe since then. However, it readily is inferred that this is a possibility. The Veteran indeed submitted a statement dated around the time of the July 2010 examination concerning deterioration of his left shoulder. Of further note is that neither this examination nor any of the previous examinations contain enough findings to determine whether or not he has a muscle injury. For these reasons, the Veteran must be afforded the opportunity to appear for another VA medical examination which is contemporaneous. Given the above, a REMAND is directed for the following: 1. Make as many requests as necessary to obtain the Veteran's VA treatment records dated from April 2011 to present. Associate all records received with the claims file or "eFolder." 2. Ask the Veteran to either submit any outstanding private treatment records regarding him or to provide enough information to identify and locate them along with an authorization for their release to VA. If he provides the information and authorization, make an initial request for the records with a follow-up request or requests as necessary. Associate all records received with the claims file or "eFolder." 3. If requested records, whether VA or private, ultimately are not received or are received but are incomplete, notify the Veteran and his representative. Document the claims file or Virtual VA "eFolder" as appropriate in this regard. 4. After completion of all of the above development, arrange for the Veteran to undergo an appropriate VA medical examination regarding his left shoulder disability. The claims file and pertinent documents in the "eFolder" shall be made available to and reviewed by the examiner. The examiner then shall interview the Veteran regarding his pertinent history, current symptoms, treatment for them, and their impact on his activities of daily living and employment. Information regarding the onset, frequency, duration, and severity of relevant symptoms, as well as flare-ups of such symptoms, shall be obtained. All tests, studies, and/or evaluations deemed necessary next shall be performed. At a minimum, this shall include those related to the shoulder muscles. It also shall include X-rays. Also, it shall include initial as well as repeated range of motion testing. Finally, any objective evidence of pain during motion shall be identified. The impact of pain, weakness, excess fatigability, and/or incoordination on motion shall be expressed in terms of the degree of range of motion lost. Their impact on motion during flare-ups, if flare-ups are reported, also shall be expressed to the extent possible in terms of the additional degree of range of motion lost. Then, the examiner shall indicate whether or not there is any muscle injury. If so, the muscle group or groups affected shall be identified and the severity of the injury specified. The examiner additionally shall indicate whether or not there is ankylosis of the scapulohumeral articulation. If so, it shall be specified whether it is favorable or unfavorable. The examiner next shall indicate whether or not there is fibrous union, nonunion (false flail joint), or loss of the head (flail shoulder) of the humerus. Finally, the examiner shall discuss the impact of the Veteran's left shoulder disability on his ability to work. Both physical and sedentary positions shall be considered in this regard. Each of the above actions shall be documented fully in a report. A copy of the report shall be placed in the claims file or "eFolder." 5. Finally, readjudicate the issue of entitlement to a rating in excess of 20 percent for the service-connected left shoulder disability. If this benefit is not granted in full, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that his failure to report for a scheduled VA medical examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument on the issue remanded herein. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. The law indeed requires that all matters remanded by the Board or by the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). A remand is in the nature of a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).