Citation Nr: 1328164 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 11-26 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to an initial disability rating in excess of 20 percent for residuals of a left shoulder disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his fiancée ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from September 1996 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision the RO granted service connection for a left shoulder disability, characterized as left shoulder instability, and assigned a 20 percent rating. The Veteran and his fiancée testified at a Travel Board hearing in July 2012 before the undersigned Veterans Law Judge. Testimony at that time indicates that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the record here raises the issue of entitlement to TDIU. Thus, under Rice, the Board has jurisdiction over the Veteran's TDIU claim, which for the purpose of clarity is listed as a separate issue on the title page. During the appeal, in an August 2012 rating decision the RO granted a temporary total convalescent rating from June 14, 2012 to September 30, 2012, under 38 C.F.R. § 4.30 (2012). That rating is not part of this appeal. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran claims entitlement to a disability rating higher than 20 percent for his service-connected left shoulder disability. VA last examined the Veteran for this in December 2011. The record includes strong evidence that the Veteran's left shoulder disability has worsened since then. Findings at the December 2011 VA examination included ranges of motion including forward flexion from zero to 140 degrees; abduction from zero to 120 degrees; internal rotation from zero to 40 degrees; and external rotation from zero to 60 degrees. At the Veteran's July 2012 Travel Board hearing, the Veteran testified that following his December 2011 VA examination, he required surgery for his left shoulder disability, which was performed by VA on June 14, 2012. The Veteran's testimony in July 2012 reflected that the current symptoms of his left shoulder disability included: soreness and constant radiating pain, which he rated to be at a level of 10 out of 10; an inability to raise, elevate, or lift his shoulder at all; instability; difficulty with picking up items; interference with daily household chores and employment; and problems with sleeplessness resulting from the left shoulder disability. The Veteran testified that his left shoulder was currently completely incapacitated; he could not use the shoulder or arm at all. He testified that he had been unemployed since April 2012 due to the left shoulder disability. All of this supports a finding that the Veteran's symptoms of his service-connected left shoulder disability have worsened since the December 2011 VA examination. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 18 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995). VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected left shoulder disability. Id. The Veteran also testified in July 2012 that since 2010 he has been receiving ongoing treatment from VA for his left shoulder disability, and prior to that he received treatment privately from Dr. Sing. Review of the record shows that some of the medical records referable to treatment are likely missing from the claims file. In particular, at least some treatment records associated with the Veteran's June 2012 left shoulder surgery appear to be absent. Any indicated medical records not on file, including such ongoing VA treatment records and private treatment records prior to 2010, should be requested and associated with the claims file prior to any examination. The record raises the issue of entitlement to TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has jurisdiction over such issue as part and parcel of the Veteran's disability rating claim. Further development is necessary for an appropriate adjudication of the TDIU aspect of such claim. On remand, the agency of original jurisdiction (AOJ) should conduct all appropriate notification and development, to include providing the Veteran with proper notice under 38 C.F.R. § 3.159 (2012), obtaining any pertinent outstanding treatment records, and affording him a VA examination to determine the effect his service-connected left shoulder disability on his employability. After all appropriate development has been completed the Veteran's claim should be adjudicated based on all evidence of record. Accordingly, the case is REMANDED for the following action: 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). 1. Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012) that includes an explanation as to the information or evidence needed to establish a claim of entitlement to a TDIU. 2. Ask the Veteran either to submit or to authorize VA to obtain on his behalf private medical records, pertaining to treatment of his left shoulder disability, to specifically include all records of treatment from Robert F. Sing, D.O., FACEP, FACSM. Associate all VA medical records of treatment of his left shoulder since 2010 not on file, to specifically include all treatment records associated with the June 2012 left shoulder surgery and ongoing treatment records since then that are not on file. 3. Afford the Veteran a VA examination to determine the current level of severity of his service-connected left shoulder disability. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated studies should be performed and all findings should be reported in detail. The examiner should identify all musculoskeletal pathology found to be present. The examination should include relevant range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's left lower extremity, i.e., the extent of the Veteran's pain-free motion. Fully describe any functional effects of the service-connected left shoulder disability, and the impact of such on the Veteran's employability. The examiner should render an opinion as to whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of the service-connected left shoulder disability. In doing so, the examiner should take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Finally, readjudicate the Veteran's appeal. If a benefit sought on appeal is not granted, the AOJ should issue the Veteran and his representative a supplemental statement of the case on that claim and provide an opportunity to respond, before the case is returned to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). _________________________________________________ C. CRAWFORD 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).