Citation Nr: 1323587 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-13 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased rating for a left shoulder disorder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from May 21, 1975, to August 20, 1980. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge in June 2011. A transcript of the hearing is of record. The Board notes that, at his June 2011 hearing, the Veteran indicated that he suffered from a heart condition (atrial fibrillation) that was associated with his anxiety disorder. In the September 2011 decision, the Board decided to grant service connection for an acquired psychiatric disorder. Hence, the Board considers the Veteran's assertions regarding his heart condition to be tantamount to a claim for service connection for that disability, to include as secondary to his psychiatric disorder. As the issue of entitlement to service connection for a heart condition, to include as secondary to an acquired psychiatric disorder, has been raised by the record, but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over that issue and, thus, refers it to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated September 2011 to June 2012. 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 regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the Veteran's left shoulder disorder claim requires additional development. In this regard, the Board issued a remand on this issue in September 2011. The requested development included obtaining a VA examination to ascertain the current severity of the Veteran's left shoulder disability. In November 2011, the Veteran underwent the scheduled VA examination. The Board notes that a review of the report, while addressing many of the requested information, failed to identify all of the requested information. In this regard, the examiner did not adequately address the Board's questions concerning flare-ups of the service-connected left shoulder disability. In addition, there was a lack of rationale provided concerning any associated neurological impairment being caused by or aggravated by the Veteran's service-connected left shoulder disability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disability on appeal. This should pertain to records not already submitted. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. The Veteran should be given an opportunity to submit any evidence showing that his service-connected left shoulder disability causes marked interference with employment. 3. Schedule the Veteran for an appropriate examination to determine the nature and etiology of the Veteran's current service-connected left shoulder disability. The examiner should address the following: a) Set forth all current complaints, findings, and diagnoses pertaining to the Veteran's service-connected left shoulder disorder. b) Provide complete range-of-motion and repetitive motion findings with respect to the Veteran's left shoulder. All ranges of motion should be expressed in degrees. c) State whether there is any favorable or unfavorable ankylosis, or instability, involving the Veteran's left shoulder. d) Specifically note whether there is any pain, weakened movement, excess fatigability or incoordination on movement. See Mitchell v. Shinseki, No. 09-2169, (U.S. Vet. App. August 23, 2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the examiner should specifically address whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups or upon repetitive motion; (2) weakened movement; (3) excess fatigability; or (4) incoordination. Id. Any additional range of motion loss should be expressed in terms of degrees. If this information cannot be provided, the examiner should provide a thorough explanation. Id. The examiner should also state whether pain significantly limits functional ability during flare-ups or when the left shoulder is used repeatedly. All limitation of function must be identified. If there is no pain, limitation of motion and/or limitation of function, such facts must be noted in the report. Id. e) State whether the Veteran's service-connected left shoulder disorder is manifested by any painful flare-ups, and, if so, the frequency and duration of such flare-ups. f) Specify whether any flare-ups with respect to the left shoulder are accompanied by any additional limitation of motion. The examiner should state the degree of additional range of motion loss due to flare-ups. g) State whether the Veteran's left shoulder disorder is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment. The diagnostic criteria applicable to nerve impairment distinguish the types of paralysis as complete and incomplete. Under incomplete paralysis, the degree of paralysis is further divided into the categories of mild, moderate, and severe. With those categories in mind, classify any left shoulder neurological pathology, distinguishing among the categories and using the results of all pertinent testing of record. Conduct all necessary sensory, reflex, and motor testing, to specifically include electromyography (EMG) or nerve conduction velocity studies. Explain the meaning of any abnormal results obtained. Provide a complete rationale for any finding made that the Veteran does not have neurological symptoms secondary to the service-connected left shoulder disability. h) State how many times, if any, during the pendency of this appeal (February 29, 2007, to the present) the Veteran has been hospitalized due to his service-connected left shoulder disorder and the durations of any such hospitalizations. i) State what impact, if any, the Veteran's service-connected left shoulder disorder has on his activities of daily living, including his ability to obtain and maintain employment. 38 C.F.R. § 4.10 (2010). j) Identify any marked interference with employment due to the service-connected left shoulder disability. A fully articulated medical rationale for any opinion expressed should be set forth in the examination report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify the evidence required in order to render a non-speculative opinion, or indicate the inability to provide the opinion is based on the limits of medical knowledge. If the examiner is unable to render an opinion because of a lack of specified evidence, the AMC should attempt to obtain that evidence and return the claims file to the examiner for completion of the opinion. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall, 11 Vet. App. at 271. 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated taken into consideration the provision of 38 C.F.R. § 3.321. If the 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. 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). _________________________________________________ K. OSBORNE 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).