Citation Nr: 1330358 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 07-19 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for the residuals of a left shoulder injury. 2. Entitlement to a disability evaluation in excess of 20 percent for a low back strain with degenerative joint disease. 3. Entitlement to a disability evaluation in excess of 10 percent for a right shoulder injury. 4. Entitlement to a disability evaluation in excess of 10 percent for a left ankle injury. 5. Entitlement to a compensable disability evaluation for a left elbow injury. 6. Entitlement to an increased disability evaluation for radiculopathy of the right lower extremity, to include a rating in excess of 10 percent prior to October 17, 2005, and a rating in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from February 1958 to February 1962 and from August 1962 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in July 2013. A transcript of this hearing has been prepared and associated with the Veteran's electronic paperless claims file (Virtual VA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 contends that he is entitled to increased disability evaluations for the issues currently on appeal. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that the Veteran was last afforded a VA examination for the issues on appeal in April 2011. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). It has been more than 2 years since the Veteran's last examination, and as will be discussed in greater detail below, there is evidence to suggest material changes in the disabilities currently on appeal. Furthermore, the April 2011 VA examination was for the purpose of determining employability and does not appear to have been a full examination. For example, there is no discussion of symptomatology such as muscle spasm involving the spine. There is also no mention of flare-ups. As such, this examination report is insufficient to permit appellate review to proceed on these matters. The last full examination of the Veteran appears to have taken place in July 2008 - more than half a decade ago. Regarding the claims of entitlement to higher ratings for right and left shoulder injuries, the Veteran testified during his July 2013 hearing that he experienced frequent pain in his shoulders. He described the pain in his right shoulder like a match being held against the shoulder. He also testified that this condition had a lot to do with him leaving his job. A September 2011 private treatment note also indicates a recent severe worsening in the Veteran's symptomatology with possible structural changes. This included the Veteran's complaints involving the right shoulder. As for the Veteran's claim for a higher rating for his lumbar spine disability, an April 2012 private treatment note reflects that the Veteran's back problems had recently increased in severity. The record also reflects a significant decrease in lumbar range of motion, with flexion to 60 degrees, backward bending (extension) to 0 degrees, and bilateral lateral bending to only 5 degrees. According to the April 2011 VA examination report, the Veteran was capable of far more motion, with flexion to 70 degrees, extension to 20 degrees and bilateral lateral bending to 20 degrees. The Veteran's radiculopathy of the right lower extremity appears to have also increased in severity. According to the April 2012 private treatment note discussed in the previous paragraph, the Veteran was experiencing a decrease in strength in the lower extremities. Finally, regarding the left ankle and the left elbow, the Veteran testified in July 2013 that his left elbow bothered him in almost everything he did and that it limited the activities he could perform. This reflects a potential change from the April 2011 examination, in which the Veteran elbow was noted to have no pain or tenderness. He also testified in July 2013 that his left ankle would give way. He also experienced pain and felt he walked with a limp due to this condition. This again represents a potential change in disability level, as the ankle was noted to have no pain or limitation upon examination in April 2011. In light of the above, the Board finds that the Veteran should be afforded a new VA examination(s) to determine the current level of severity of the disabilities currently on appeal. The examiner should review the entire claims file, including the private treatment records provided by the Veteran since his last VA examination. The examiner is then asked to describe in detail all symptomatology associated with the Veteran's service-connected disabilities, as well as additional functional loss due to pain, fatigue or other symptomatology, or, due to flare-ups. Lastly, the most recent VA treatment records associated with Virtual VA are dated April 2012. Records prepared since this time should also be incorporated into the claims file. 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) (2013). Expedited handling is requested.) 1. VA treatment records prepared since April 2012 should be obtained and associated with the Veteran's claims file, either physically or electronically. 2. The Veteran should be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected right and left shoulder disabilities. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report must reflect review of these items. The examiner should perform all indicated tests and studies, and describe in detail all symptomatology associated with the right and left shoulder disabilities, including limitation of motion. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. A complete rationale must be offered for all opinions offered, and the Veteran's lay assertions must be considered and discussed when formulating an opinion. 3. The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected lumbar spine disability. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report must reflect review of these items. All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's lumbar spine disability, including limitation of motion and any periods of incapacitation due to intervertebral disc syndrome. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. A complete rationale must be offered for all opinions offered, and the Veteran's lay assertions must be considered and discussed when formulating an opinion. 4. The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected left ankle disability. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report must reflect review of these items. The examiner should perform all indicated tests and studies, and describe in detail all symptomatology associated with the left ankle disability, including limitation of motion. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left ankle. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. A complete rationale must be offered for all opinions offered, and the Veteran's lay assertions must be considered and discussed when formulating an opinion. 5. The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected left elbow disability. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report must reflect review of these items. The examiner should perform all indicated tests and studies, and describe in detail all symptomatology associated with the left elbow disability, including limitation of motion. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left elbow. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. A complete rationale must be offered for all opinions offered, and the Veteran's lay assertions must be considered and discussed when formulating an opinion. 6. Finally, the Veteran should be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected radiculopathy of the right lower extremity. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report must reflect review of these items. The examiner should perform all indicated tests and studies, and describe in detail all symptomatology associated with the right lower extremity, including pain, weakness, numbness or other neurological manifestations. A complete rationale must be offered for all opinions offered, and the Veteran's lay assertions must be considered and discussed when formulating an opinion. 7. The agency of original jurisdiction (AOJ) should then carefully review the medical opinions obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry. 8. The AOJ should then readjudicate the claims on appeal in light of all of the evidence of record. If an issue remains denied, the AOJ should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford him a reasonable period of time within which to respond thereto. 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). _________________________________________________ WAYNE M. BRAEUER 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) (2013).