Citation Nr: 1325986	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  10-26 402	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable evaluation for left shoulder rotator cuff tear.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Kessel, Counsel



INTRODUCTION

The Veteran had active military service from January 1979 to October 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In March 2012, the Board denied the claim.  The Veteran then filed an appeal to the United States Court of Appeals for Veterans Claims (Court).  In November 2012, the Veteran's representative before the Court and VA General Counsel filed a joint motion to vacate and remand the Board's March 2012 decision.  In a November 2012 order, the Court granted the joint motion and remanded the left shoulder claim to the Board for action consistent with the terms of the joint motion.

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

In the November 2012 joint motion for remand, the parties agreed that the Board should remand the case for a new VA examination in connection with the claim.  Thus, the Board must remand this matter for compliance with the Court's November 2012 order granting the parties' joint motion.  See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006); Stegall v. West, 11 Vet. App. 268, 271 (1998).

In light of the remand, updated treatment records should be obtained from the VA Medical Center (VAMC) in Tampa, Florida, and its associated outpatient clinic in Viera, Florida.

Accordingly, this case is REMANDED for the following actions:

1.  Obtain the Veteran's more recent treatment records (since September 2009) from the Tampa VAMC and Viera outpatient clinic, and associate the records with the claims folder.

2.  Thereafter, schedule the Veteran for a VA examination to determine the severity of his left shoulder rotator cuff tear.  The claims folder should be made available to and reviewed by the examiner.  All necessary tests should be performed.

The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected left shoulder disability.

The examiner should report the range of motion of the left shoulder, in degrees.  The examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to:  (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination.  The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the left shoulder is used repeatedly.  If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached.

3.  Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue on appeal.  If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

No action is required of the Veteran until he is notified by VA.  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. 2013).



_________________________________________________
JOAQUIN AGUAYO-PERELES
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).