Citation Nr: 1324322	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  11-01 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to a rating higher than 30 percent for the service-connected residuals of a gunshot wound to the left shoulder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel

INTRODUCTION

The Veteran served on active duty from June 1968 to August 1969.  

This matter comes before the Board of Veterans Appeals (Board) on appeal of a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that continued a current 30 percent disability rating for the Veteran's service-connected left shoulder disability, characterized as gunshot wound to the left shoulder with damage to muscle group I and fractured clavicle.

The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in March 2011.  A transcript of that hearing is of record.

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 on his part.


REMAND

The Veteran's most recent VA examination was performed in March 2010.  During his Travel Board hearing in March 2011 the Veteran described impairment of function that suggests his disability may have increased in severity since that examination.  The Board accordingly finds the Veteran should be afforded a new VA examination before the appeal for increased rating is adjudicated.  38 C.F.R. § 3.159(c)(4) (2012).

Relevant ongoing medical records should also be requested.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).


Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his left shoulder disability.  After securing the necessary release, the RO/AMC should request any relevant records identified which are not duplicates of those already contained in the claims file.  In addition, relevant VA treatment records dating since December 2009 should be requested from the Pittsburgh VA Healthcare System, to include the Westmoreland VA outpatient clinic. 

2.  After the above has been completed to the extent possible, the Veteran should be afforded VA shoulder and muscle examinations to determine the current nature and severity of his service-connected residuals of gunshot wound to left shoulder with damage to muscle group I and fractured clavicle.  The claims folder must be made available to and reviewed by the examiner, and any indicated diagnostic studies should be performed.  In addition to providing objective test results, the examination report(s) should describe the effects of the Veteran's left shoulder disability on his occupational functioning and daily activities.   

3.  Then, the RO/AMC should readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, then RO/AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

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. A. BANFIELD
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).