Citation Nr: 1326579 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-21 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 10 percent for a left (non-dominant) shoulder disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1966 to March 1970 and from November 1973 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). The case is in the jurisdiction of the Atlanta, Georgia RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran asserts that the 10 percent rating for his left shoulder disability does not adequately reflect the degree of pain and functional impairment he experiences. In his September 2011 VA Form 9 (substantive appeal), the Veteran reported left shoulder "nerve damage" and complained of having to "lift [his] left arm over [his] head and support it on the shower wall to wash." He also stated that his "shoulder pops, and makes snapping noises" every time he changes directions with his arm or uses it to support himself when getting up from a sitting position. In December 2008 the Veteran was afforded VA examinations of his left shoulder by a PA (physician's assistant) and a physician. On examination by the PA left shoulder flexion was found to be to 130 degrees and abduction to 135 degrees with pain at 90 degrees after 3 repetitions; axillary palsy with atrophy of the left deltoid secondary to fracture was diagnosed. The examination by the physician found 180 degrees of left shoulder flexion and abduction "with pain on all ranges of motion with crepitus"; the impression was "left shoulder healed clavicular fracture with axillary palsy with no evidence of deltoid atrophy." In light of the clearly conflicting findings and the length of the intervening period since the December 2008 VA examinations, another examination is necessary. As the service-connected left shoulder disability (residuals of fracture of the distal left clavicle and nerve palsy with atrophy of the deltoid) includes both orthopedic and peripheral nerve pathology, a finding of peripheral nerve impairment separate and distinct from orthopedic impairment may warrant a separate rating for the neurological component of the disability. The record (including Agent Orange and Persian Gulf examination reports and report of cardiology consultation) suggests that the Veteran receives ongoing treatment for his left shoulder disability. The most recent records of such treatment in the record are dated in July 2008. Updated treatment records are pertinent evidence which must be secured; notably, any VA treatment records are constructively of record. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify all providers of evaluation or treatment he has received for his left shoulder disability since November 2007 (one year prior to receipt of his claim for increase), and to provide authorizations for VA to obtain records of any such private treatment. The RO should secure for the record copies of complete clinical records of the identified treatment (i.e., any not already associated with the claims folder). The Veteran should be notified if any records he identified are not received pursuant to the RO's request. The RO must specifically secure complete records of all VA treatment he has received for his left shoulder from November 2007 to the present. 2. After the record is determined to be complete, the RO should arrange for an orthopedic examination of the Veteran to determine the current severity of his left shoulder disability. His claims file must be available to the examiner for review in conjunction with the examination. Any indicated tests or studies must be completed. The examination should include range of motion studies of the left shoulder, with notation of any further limitations due to pain. The examiner must describe the nature any severity of any related neurologic symptoms. The examiner should note whether there is any pain, weakened movement, excess fatigability, or incoordination on movement of the left upper extremity. The examiner should specifically address/resolve the inconsistent findings regarding atrophy by the separate December 2008 VA examiners. 3. The RO should then review the record and readjudicate the claim for increase (to include consideration of whether a separate rating is warranted for neurological manifestations of the disability). If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ GEORGE R. SENYK 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).