Citation Nr: 1327760 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-50 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for upper back strain with left scapular winging. ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from June 2004 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which assigned an initial noncompensable rating for the Veteran's upper back strain, effective from July 31, 2007. In a November 2009 rating decision, the RO increased the rating from noncompensable to 10 percent disabling, effective July 31, 2007. This increase did not satisfy the Veteran's appeal. This case was before the Board in January 2013 when it was remanded for additional development. It has since been returned to the Board for further appellate action. The issue of entitlement to service connection for a left shoulder strain as secondary to the service-connected upper back disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. REMAND In the January 2013 remand, the Board directed the RO or the Appeals Management Center (AMC) to afford the Veteran a VA examination to determine the current degree of severity of his service-connected upper back disability, to include all orthopedic and neurological manifestations of such disability. The Veteran underwent VA examinations in April 2013, however, the examiner failed to provide any orthopedic findings with respect to the Veteran's service-connected upper back disability. As such, the Veteran must be afforded another VA examination to determine the current degree of severity of his service-connected upper back strain with left scapular winging, to include an assessment of all orthopedic manifestations attributable to such disability. As there has not been substantial compliance with the remand directives, the appeal must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998 Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent records. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran so notified. 2. Then, the RO or AMC should arrange for the Veteran to be afforded a VA examination by an examiner with sufficient expertise to determine the nature and extent of all impairment due to the service-connected upper back strain with left scapular winging. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner in conjunction with the examination. The RO or AMC should ensure that the examiner provides all information required for rating purposes, to include all orthopedic manifestations of the disability. 3. The RO or AMC should ensure that the Veteran is provided with adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for the examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. The RO or AMC should also undertake any other development it determines to be warranted. 5. Then, the claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or AMC should issue to the Veteran a supplemental statement of the case and afford him the appropriate opportunity for response before the claims files are returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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. 2012). _________________________________________________ Shane A. Durkin 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).