Citation Nr: 1328090 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 08-24 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 40 percent for degenerative joint disease, left elbow, residual of left arm injury. 2. Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease, left shoulder, residual of left arm injury. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from March 1959 to September 1959 and from June 1960 to July 1960, with additional service in the Army National Guard from November 1958 to September 1960. The appeal comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND By a July 2013 filing, the Veteran's authorized representative withdrew from representation of the Veteran in his appeal. The record reflects that the representative did not participate in the appeal process subsequent to filing a statement and submitting a new private medical evaluation in February 2012. There is no indication in the record that the representative reviewed the most recent supplemental statement of the case in June 2013. There is thus presented a substantial question of adequate representation of the Veteran in his appeal following that February 2012 submission. The Veteran should be afforded opportunity to appoint a new authorized representative to represent him in his appeal before the Board. The Veteran's previous representative provided a February 2012 private medical evaluation responsive to the findings of the November 2011 VA examination addressing the Veteran's claimed left shoulder and left elbow disabilities. As the private examiner noted, "there are discrepancies [between the VA examination] and mine." Significantly, the private examiner found more disability associated with pain, and found "full cooperation" on the part of the Veteran throughout the examination, such that the Veteran "did not appear to be malingering at all," with pain at a "5" level. The private examiner concluded that the Veteran "will not improve with any treatment but without use of physical therapy exercise and medication will get progressively worse." In contrast, the November 2011 VA examiner found only mild degenerative changes in each of the affected joints upon x-rays, and found at most mild impact on any activities. The VA examiner opined that the Veteran "did not fully participate with maximum effort during range of motion assessment and repetitive goniometric measurements of the left elbow (especially pronation, supination, and extension motions) and shoulder." The VA examiner added, "Greater functional capacity was seen beyond what was measured. . . ." Measurements of range of motion obtained also reflected more limited motion upon private examination than VA examination. An additional, thorough VA examination is in order specifically to address discrepancies between the November 2011 VA examination findings and those of the February 2012 private examiner. In February 2012, the Veteran's previous representative asserted that the VA examiner in November 2011 had "refused to acknowledge the findings of the Nerve Condition (sic) study, and the [electromyograph] study." However, the VA examiner addressed neuropathy in the left upper extremity and discounted any association with the Veteran's service-connected elbow and shoulder disabilities. Nevertheless, upon remand examination, the examiner should be asked to address again any associated neuropathy. Accordingly, the case is remanded for the following action: 1. The Veteran must be afforded an appropriate development notice letter, specifically affording him the opportunity to appoint a new authorized representative to represent him in his present appeal before the Board. A list of veterans service organizations must be provided. 2. The Veteran must also be afforded opportunity to submit additional evidence or argument in furtherance of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative, if any, must then be given an opportunity to respond. 3. Thereafter, the Veteran must be afforded an appropriate VA examination to assess the current severity of his service-connected degenerative joint disease of the left elbow, and degenerative joint disease of the left shoulder. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. If necessary to evaluate the complaints, nerve conduction studies and/or electromyograph studies must be conducted. The examiner must report all associated neurological complaints and findings attributable to the Veteran's service-connected left elbow and left shoulder. The examiner must conduct full range of motion studies on the service-connected left elbow and left shoulder. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected left elbow and left shoulder. 4. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If any issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, if any. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).