Citation Nr: 1324882 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-00 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disorder, claimed as dislocation of a left shoulder. 2. Entitlement to an initial rating greater than 10 percent for hypercoaguable state status-post left deep vein thrombosis with factor V deficiency ("DVT left leg disability"). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from November 1986 to November 1989, from March 1991 to March 1992, and again from July 1992 to June 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Thereafter, in a November 2009 rating decision, the RO granted the Veteran an increased rating from 0 percent to 10 percent for his DVT left leg disability. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue is still properly before the Board here and the issue has been appropriately rephrased above. 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 on his part. REMAND The Veteran filed his claims for service connection while still on active duty. The majority of the medical evidence in this case is found in his service treatment records. In fact, the claims folder does not contain any medical evidence beyond July 2009, four years ago. The service treatment records in the claims folders, moreover, do not include any of his in-service treatment for his first period of active duty, from November 1986 to November 1989. On his September 2008 Notice of Disagreement (NOD), the Veteran indicated he intended on seeking VA treatment for his DVT left leg disability after separation from active duty and private treatment for his left shoulder. As to both issues, the VA must make efforts to ensure the file is complete and obtain any and all relevant treatment records, to include service treatment records from 1986 to 1989. See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. For reasons explained below, the Board further finds VA examinations are necessary to fairly adjudicate the claims on appeal. Service Connection (Left Shoulder) With regard to service connection claims, the Court held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, the Veteran's service treatment records confirm a history of various left shoulder injuries and treatment. In December 1995, the Veteran was seen for left shoulder pain lasting 72 hours. He could not recall a specific injury at the time. In August 2002, the Veteran was treated in the emergency room for a rotator cuff injury of the left shoulder after lifting weights. The Veteran's injury was suspected to either be an impingement syndrome or a small rotator cuff tear. In December 2004, the Veteran dislocated his left shoulder in a snowboarding accident and the radiologist at that time also noted a little chip in the humeral head. Service treatment records from December 2004 through June 2005 note the dislocated left shoulder and subsequent physical therapy. The Veteran was also diagnosed with adhesive capulitis of the left shoulder in March 2005. In contrast, the Veteran was afforded a VA examination in April 2008 (prior to separation from active duty), where the examiner noted the Veteran's pertinent medical history, but found no abnormality of the left shoulder at that time. Since then, the Veteran indicated (in his September 2008 NOD) that he plans on seeking private treatment for his left shoulder, which he contends is progressively getting worse. In light of the Veteran's in-service treatment/diagnoses pertinent to the left shoulder, and potentially relevant missing medical evidence in this case, the Board concludes a new VA examination is necessary to ascertain whether the Veteran has a current left shoulder condition related to his in-service duties or injuries, to include a December 2004 dislocation, and in-service diagnosis of adhesive capulitis. Increased Rating (DVT Left Leg Disability) With regard to increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was last afforded a VA examination related to his DVT left leg disability in July 2009, four years ago. The Veteran claims his legs swell, cramp, and are painful on a constant basis, especially with prolonged standing and walking. The claims folder does not contain any medical evidence beyond 2009. The Veteran indicated on his September 2008 notice of disagreement (NOD) that in light of his recent release from active duty, he had not yet received formal treatment. As indicated above, it is likely the record is currently incomplete. In light of the potentially missing records and the time lapse since the last VA examination, the Board concludes a new VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Contact NPRC, the United States Army, or any other appropriate agency to ensure all service treatment records are obtained, to include his first period of active duty from November 1986 to November 1989. All efforts to obtain these records should be fully documented, and the agencies must provide a negative response if records are not available. 2. Ask the Veteran to identify and provide release forms for any private or VA treatment relevant to the issues on appeal since his separation from active duty in June 2008. Thereafter, the records should be obtained specifically asking that treatment reports, versus summaries, be provided. All efforts to obtain these records should be fully documented, and all VA facilities must provide a negative response if records are not available. 3. After completing 1 and 2 above and records are obtained to the extent available, schedule the Veteran for an orthopedic VA examination for his claimed left shoulder disorder to determine the extent and likely etiology of any condition(s) found. The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Based on the examination and review of the records, the examiner specifically should answer the following questions: (a) Does the Veteran have a current diagnosable left shoulder disorder? If so, identify all diagnoses. (b) If the answer to (a) is "yes," are any of the diagnosed conditions at least as likely as not (50 percent probability) directly related to the Veteran's military service, in-service injuries, in-service diagnosis, or in-service duties? The examiner is specifically informed of the Veteran's in-service treatment for left shoulder pain and/or injuries in December 1995 (left shoulder pain), August 2002 (weight lifting injury with suspected impingement syndrome or small rotator cuff tear), and December 2004 (left shoulder dislocation with physical therapy thereafter through June 2005); the March 2005 diagnosis of left shoulder adhesive capulitis; and the April 2008 VA examination finding no abnormality of the left shoulder at that time. The examiner is also informed, to the extent relevant, the Veteran duties included parachuting, in which he received a parachutist badge. The examiner is to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After completing 1 above and records are obtained to the extent available, schedule the Veteran for an appropriate VA examination to obtain current findings as to the severity of the Veteran's hypercoaguable state status-post left deep vein thrombosis with factor V deficiency ("DVT left leg disability"). The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Based on the examination and review of the record, the examiner is to address all pertinent manifestations of the Veteran's disability and the severity of any and all manifestations found. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Then, readjudicate the claims on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case must then be returned to the Board for further appellate review, if otherwise 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). The 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 2002). _________________________________________________ KATHLEEN K. GALLAGHER 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).