Citation Nr: 1322697 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 05-35 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased evaluation for post-operative residuals of dislocations of the left shoulder, evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Neilson, Counsel REMAND The Veteran had active military service from September 1978 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The procedural history of this case is a lengthy one, involving multiple actions by the Board and an appeal to and remand from the United States Court of Appeals for Veterans Appeals (Court), after which the matter has been twice remanded to the agency of original jurisdiction (AOJ) for further development. Specifically, the Board remanded the matter for the Veteran to be afforded a comprehensive VA examination to evaluate the complete nature and severity of his service-connected post-operative residuals of dislocations of the left shoulder, so as to enable to the AOJ and the Board to determine whether the Veteran is entitled to separate ratings based on evidence reflecting neurological symptomatology and muscle involvement potentially associated with his service-connected shoulder disability. Notably, the Veteran's left shoulder disability has been evaluated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5203-5201, which indicates that impairment of the clavicle or scapula is the service-connected disorder and that the rating assigned is based on the limitation of the arm under DC 5201. The evidence of record, however, raises a question as to whether the Veteran may be entitled to separate ratings under 38 C.F.R. § 4.73, pertaining to muscle injuries, and/or 38 C.F.R. § 4.124a, pertaining to neurological conditions. Specifically, the evidence shows that the Veteran has reported, and continues to report, numbness and tingling in his left fingers and thumb. The Board notes that the Veteran was afforded a VA examination in December 2012. The examiner indicated that an electromyography (EMG) was performed that showed left mild median neuropathy (carpal tunnel syndrome) at the left wrist. Although the examination report contains an opinion that the Veteran's carpal tunnel syndrome might explain his complained-of numbness from the shoulder to the wrist, and an indication that once the Veteran's numbness was controlled, re-evaluation by orthopedics would be recommended, review of the record reveals that that opinion was a reiteration of an August 2009 treatment note. The referenced EMG was also conducted in August 2009. A May 2013 VA examiner similarly reiterated these findings and then stated that the Veteran has not been diagnosed with a neurological deficit of the left upper extremity other than carpal tunnel syndrome, nor had he presented chronic, progressive complaints of neurological symptoms. Upon review of this evidence, the Board finds that additional development is necessary. This is so because it appears that the December 2012 and May 2013 VA examiners' opinions regarding the presence, or lack thereof, of neurological manifestations of the Veteran's shoulder disability are based on the results of an August 2009 VA clinician's assessment of the Veteran, based on EMG results dated at that time. However, the August 2009 clinician's opinion is less than definite regarding whether the Veteran's complained-of numbness from the shoulder to the wrist can be attributed to his carpal tunnel syndrome and that the clinician clearly recommended re-evaluation by orthopedics after a left neutral wrist sprint was worn at night for a period of time. As it does not appear that any additional testing has been done since August 2009 and the Veteran continues to complain of numbness and tingling in his left upper extremity, which possibly suggests that treatment of his carpal tunnel syndrome has not alleviated his numbness, the Board finds that the evidence currently of record is insufficient to determine whether the Veteran is entitled to a separate rating for neurological manifestations of his service-connected shoulder disability. Regarding whether the Veteran has an associated muscle injury, the Board notes that a November 2006 treatment record indicates atrophy of the teres minor and infraspinatous muscles. The Board further notes VA treatment records show complaints of increased shoulder pain in July 2012 and during an August 2012 physical therapy evaluation, the Veteran reported a worsening of shoulder symptomatology over the previous year. The November 2012 and May 2013 VA examination reports also reflect that several tests conducted to identify rotator cuff conditions were positive, which may signify rotator cuff tendinopathy or a tear. Notably, however, the most recent VA examination report of record contains no discussion of this evidence as required by the Board's most recent remand; nor did the AOJ specifically consider whether the Veteran had an associated muscle injury or discuss why a separate rating was not warranted. Accordingly, the matter must again be remanded to ensure compliance with the Board's earlier remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (stating that the Board is prohibited from exercising its own independent judgment to resolve medical questions). Accordingly, the case is REMANDED to the AOJ for the following action: 1. Schedule the Veteran for a VA examination in connection with his claim for a higher evaluation for his service-connected post-operative residuals of dislocations of the left shoulder. (The AOJ should consider whether separate neurological and muscle examinations are necessary and, if so, may combine those examinations if the AOJ finds an examiner with the ability to address all questions posed below.) The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should be asked to answer the following questions. If additional testing is necessary to answer any question, the examiner should indicate what testing is necessary and any appropriate tests and/or studies should be performed and all clinical findings should be reported in detail. a. Is it at least as likely as not that the Veteran's complaints of numbness and tingling in his left upper extremity can be attributed to a neurological disorder that is the result of his service-connected left shoulder dislocations? The examiner should set forth in detail the evidence relied upon to form his/her opinion in this regard and state why this evidence does or does not support such a finding. In this regard, the examiner should discuss the significance of the Veteran's continued complaints of neurological symptoms in connection with his treatment for carpal tunnel syndrome, as well as the indication that if due to carpal tunnel syndrome, the Veteran's symptoms would be alleviated with treatment. b. Is it at least as likely as not that the Veteran's carpal tunnel syndrome has been made chronically worse by the service-connected shoulder dislocations or surgery therefor? c. Is it at least as likely as not that the Veteran has a muscle injury, to specifically include a rotator cuff disability, associated with his service-connected left shoulder dislocations? The examiner should set forth in detail the evidence relied upon to form his/her opinion in this regard and state why this evidence does or does not support such a finding. In this regard, the examiner should discuss the November 2006 treatment record that indicated atrophy of the teres minor and infraspinatous muscles, as well as any positive test results for rotator cuff conditions, to include those contained in the December 2012 and May 2013 VA examination reports, and state whether or not these positive tests are indicative of an associated muscle injury. If the November 2006 VA treatment record and/or any such positive test results do not suggest an associated muscle injury, the examiner should explain why not. d. Is it at least as likely as not that any disability/injury of the rotator cuff has been made chronically worse by the Veteran's service-connected shoulder dislocations or surgery therefor? If the examiner finds nerve impairment caused or made worse by the Veteran's service-connected shoulder dislocations or surgery therefor, the examiner should identify each nerve affected by the shoulder disability and indicate whether the degree of disability is "mild," "moderate," "moderately severe," "severe," or "complete paralysis." If the Veteran is found to have an associated muscle injury, the examiner should determine the extent and current degree of impairment manifested by any muscle damage. The disability associated with any affected muscle groups should be classified as "slight," "moderate," "moderately severe," or "severe." The examiner should also comment concerning the presence or absence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. If an associated muscle injury is found to exist, the examiner should identify any functional impairment, including any limitation of motion of the shoulder due to muscle injury. If there is any effect on the shoulder or other joint function, the effects, whether due to pain, weakness, etc., should be described in terms of limitation of motion. Regardless of whether any opinion as to any question is favorable or negative, the examiner(s) must provide support for his/her opinions that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. If it is determined that an opinion as to any issue at hand cannot be provided without resorting to speculation, the examiner should explain the inability to provide that opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.) 2. The AOJ must ensure that the medical examination and opinion report complies with this remand and the questions presented in the request paying particular attention to whether responses have been provided to all four questions set forth above. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 3. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should re-adjudicate the issue of entitlement to a rating greater than 30 percent for the Veteran's service-connected post-operative residuals of dislocations of the left shoulder. The AOJ must discuss whether to award separate ratings under 38 C.F.R. § 4.73, pertaining to muscle injuries, and/or 38 C.F.R. § 4.142a, pertaining to neurological conditions. If the AOJ determines that separate ratings are not warranted, the AOJ should set forth specific reasons for so finding. If a benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response before the case is returned to the Board. Thereafter, the case should be returned to the Board for further appellate review. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________ MARK F. HALSEY 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 Court. 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).