Citation Nr: 1325521 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 97-11 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. What evaluation is warranted for residuals of a recurrent right shoulder dislocation from May 2, 1996 to April 12, 1999? 2. What evaluation is warranted for residuals of a recurrent right shoulder dislocation from April 13, 1999 to January 22, 2004? REPRESENTATION Appellant represented by: Daniel G. Kresnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to June 1975. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, that granted service connection for residuals of a recurrent right shoulder dislocation and assigned a 20 percent evaluation, effective from May 2, 1996. The Veteran, in pertinent part, appealed the rating assigned. In April 1999, the Veteran testified during a hearing at the RO before a Veterans Law Judge who subsequently left the Board. A transcript of that hearing is of record. In August 1999, the Board granted a 30 percent rating for the shoulder disorder effective from May 2, 1996. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a December 1999 Order, the Court vacated and remanded for further development that portion of the Board's decision that denied a rating in excess of 30 percent in accordance with instructions contained in a December 1999 Joint Motion for Remand submitted by the appellant and VA's General Counsel. In August 2000, the Board remanded the Veteran's case to the RO for further development. Thereafter, in October 2002, the Board, pursuant to the provisions of 38 C.F.R. § 19.9(a)(2) (2002), ordered further development by the Board's evidence development unit. In August 2003, the case was remanded to the RO. In June 2004, the RO increased the evaluation for the Veteran's right shoulder disorder to 40 percent disabling effective from April 13, 1999. In October 2004, the Board again remanded the case. In August 2006, the evaluation for the right shoulder disorder was increased to 50 percent from January 23, 2004. In a February 2007 decision, the Board denied the Veteran's claims. He appealed, and in August 2008, the Court granted a Joint Motion for Remand vacating and remanding that part of the Board's decision that denied entitlement to an evaluation in excess of 30 percent for residuals of a recurrent right shoulder dislocation from May 2, 1996 to April 12, 1999; and an evaluation in excess of 40 percent for residuals of a recurrent right shoulder dislocation from April 13, 1999 to January 22, 2004. The appeal as to the remaining issue, entitlement to an evaluation in excess of 50 percent from January 23, 2004, was dismissed. In August 2009, the Board remanded the case for further development. In June 2010, the Board denied entitlement to an evaluation is excess of 30 percent for residuals of a recurrent right shoulder dislocation from May 2, 1996 to April 12, 1999; and denied entitlement to an evaluation in excess of 40 percent for residuals of a recurrent right shoulder dislocation from April 13, 1999 to January 22, 2004. The Board also referred the issue of entitlement to a separate rating for a right shoulder scar to the Agency of Original Jurisdiction (AOJ). There is no indication that this has been considered by the AOJ. Hence, the matter is again referred for appropriate and immediate action. In January 2011, the parties filed another Joint Motion for Remand, which was subsequently granted. In April 2011, the attorney submitted additional argument with a waiver of RO jurisdiction. In May 2012, the Board remanded the case for additional development consistent with the Joint Motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2011, the Board remanded the case for additional development consistent with the January 2011 Joint Motion filed with the Court. In the Joint Motion, the parties agreed that the Board should provide adequate reasons and bases for the conclusion that separate evaluations are not warranted for limitation of motion of the arm under Diagnostic Code 5201 and impairment of the humerus under Diagnostic Code 5202. In response, the Board directed that the Veteran be afforded a VA examination and that the examiner render an opinion describing the manifestations of disability typically resulting from impairment of the humerus and whether any guarding of movement includes limitation of arm motion. The Veteran was afforded a VA examination in October 2012 and an additional VA medical opinion was obtained in June 2013. Unfortunately, neither examiner addressed this particular question posed by the Board. Hence, the Board's remand directives were not substantially complied with and a remand is necessary for a supplemental opinion. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Arrange for claims file review by the June 2013 VA examiner, or another equally qualified physician, to obtain a supplemental opinion as to the Veteran's right shoulder disability. The Veteran's claims folder and access to Virtual VA must be made available for the physician's review prior to the entry of any opinion. The physician must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner is to specifically describe the manifestations of disability typically resulting from impairment of the humerus and specifically indicate whether recurrent dislocation of the scapulohumeral joint with guarding of movement or fibrous union includes limitation of arm motion. A complete and well reasoned rationale for any opinion expressed must be provided. 2. Upon completion of the above requested development and any additional development deemed appropriate, the RO is to readjudicate the issues remaining on appeal. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his attorney should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). The claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ DEREK R. BROWN 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).