Citation Nr: 1330394 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-08 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an increased rating for service-connected status post arthroscope with debridement and repair of the biceps tendon (formerly rated as tendonitis, right shoulder with limitation of motion and weakness, also claimed as SLAP tear in the bicep tendon)(major), currently evaluated as 20 percent disabling. 2. Entitlement to service connection for left shoulder disorder (also claimed as SLAP tear in the bicep tendon), to include as secondary to service-connected right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1995 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied an increased rating for the service-connected right shoulder disability and denied service connection for a left shoulder disability. (Jurisdiction over the case was subsequently transferred to the Hartford, Connecticut RO.) The Veteran disagreed with this decision in September 2009, and a statement of the case was issued in February 2010. He perfected a timely appeal on these issues in February 2010. The record also reflects the issuance of a statement of the case in July 2010 on the issues of entitlement to a higher rating for a right ankle disability and entitlement to service connection for posttraumatic stress disorder, left knee pain, right knee pain, left ankle pain, and bilateral pes planus. The Veteran, however, did not perfect an appeal on these issues through filing VA Form 9 or correspondence containing the necessary information. Accordingly, these issues are not before the Board. See 38 C.F.R. § 20.200 (2013) ("An appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal."). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND After a review, the Board observes that further development is required prior to adjudicating the Veteran's claims. In regard to the increased rating claim, by way of history, the Board observes that in an April 1999 rating decision, service connection for tendonitis, right shoulder was granted and a 10 percent rating under Diagnostic Code 5024 was assigned. (Service treatment records showed that the Veteran sustained a deltoid muscle strain and an impression of rotator cuff tendonitis was noted.) In a January 2005 rating decision, the disability was recharacterized as tendonitis, right shoulder with limitation of motion and weakness, and the rating was increased to 20 percent under Diagnostic Codes 5024-5201. Thereafter, in the instant claim filed in February 2009, the Veteran sought service connection for "SLAP [Superior Labrum from Anterior to Posterior] Tear in the bicep tendon, secondary to service connected shoulder." The Veteran underwent a VA joints examination in May 2009. In an August 2009 rating decision, the RO expanded service connection to include the additional claimed disability, recharacterized the disability as "status post arthroscope with debridement and repair of the biceps tendon (formerly rated as tendonitis, right shoulder with limitation of motion and weakness, also claimed as SLAP tear in the bicep tendon)(major)," and continued the 20 percent evaluation under Diagnostic Codes 5024-5201. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, here, the Board finds that with the passage of over four years, the May 2009 VA examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See VAOPGCPREC 11-95; Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007). Also, given the nature of the disability, the Board finds that evaluation of the disability under the Schedule of Ratings for muscle injuries should be considered as well. For these reasons, the Board finds that the Veteran must be afforded another VA examination to include a muscles exam. In regard to the service connection claim, the Veteran contends that he has a disability of the left shoulder as the result of overcompensating for his disabled service-connected right shoulder disability. The May 2009 VA examination report shows that the examiner initially addressed whether the Veteran's left shoulder disability was related to service. The RO returned the examination report to the VA examiner for an addendum. The examiner provided the following opinion: [I]t is not likely that the problem with one shoulder has contributed to the malfunction of the second shoulder. In the context of the age, and this is dealing with speculation, to say that the repeated problem with the right shoulder caused the problem with the left shoulder. The Board finds that the rationale the VA examiner provided is unclear. The examiner appears to suggest that aging may be a significant factor or the cause of the impairment associated with the Veteran's left shoulder. The Board, however, notes that when the VA examiner addressed the right shoulder, the examiner referred to the Veteran as "young." See May 2009 VA examination report ("Status post-repair of injury to the shoulder with limitation of motion as noted. This is a significant limitation in the context of his young age."). Therefore, the Board finds that another opinion should be obtained. In addition, in a February 11, 2009 statement, the Veteran indicated that the results of a January 2009 magnetic resonance imaging (MRI) scan on his left shoulder could be found in his VA medical records from Providence. VA treatment records (printed on February 10, 2009) dated from January 2009 to February 2009 are associated with the claims file and contain references to the MRI but no results of the MRI. The Board finds that VA treatment records dated from January 2008 to date, including the January 2009 MRI results, pertaining to any treatment the Veteran received for his shoulders should be procured. See 38 U.S.C.A. § 5103A(b) (West 2012); 38 C.F.R. § 3.159(c) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board also observes that in the February 2009 VA Form 21-4142 the Veteran also identified having received physical therapy for his left shoulder through S.H. of South Shore Sports Therapy and C.M. of Power House Gym. These records should be procured as well. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he complete and return an authorization form (VA Form 21-4142) to permit VA to obtain records of physical therapy on his left shoulder he identified as having received from S.H. of South Shore Sports Therapy and C.M. of Power House Gym. Notice to the Veteran of inability to obtain any identified records should comply with 38 C.F.R. § 3.159(e). The Veteran should also be advised that in the alternative, he can provide these records of treatment. 2. Obtain VA treatment records from all treating VA facilities, including the January 2009 MRI results from the Providence, Rhode Island VAMC, pertaining to any treatment the Veteran received for his bilateral shoulder disabilities dated since January 2008. All efforts to obtain VA records should be fully documented. The VA facility must provide a negative response if records are not available, and notice to the Veteran of inability to obtain these records must comply with 38 C.F.R. § 3.159(e). 3. Thereafter, schedule the Veteran for joints, muscles, and scars examinations by an examiner with appropriate expertise to determine the nature and extent of all impairment due to the Veteran's service-connected right shoulder disability (status post arthroscope with debridement and repair of the biceps tendon) and to determine whether the Veteran's left shoulder disability is secondary to the service connected right shoulder disability. The claims folder must be made available to and reviewed by the examiner. All indicated studies, including x-rays should be performed. Right Shoulder (a) Describe all impairment associated with the right shoulder including involvement of the rotator cuff, labrum, deltoid, and biceps. (b) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (c) The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. (d) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. (e) Identify and describe in detail any scarring, including scars from the biceps tendon repair. (f) The examiner should also provide an opinion concerning the impact of the disability on the Veteran's ability to work. The rationale for all opinions expressed should also be provided. Left Shoulder The underlying rationale for finding that the service-connected right shoulder disability had not "contributed" to the malfunction of the left shoulder disability provided in the July 2009 addendum to the May 2009 VA examination is not clear. Based on a review of the claims file and consideration of the Veteran's theory that his left shoulder disability is the result of overcompensating for his right shoulder disability, the examiner should provide another opinion on the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's left shoulder disability was (i) caused by or (ii) aggravated by the Veteran's service connected right shoulder disability (status post arthroscope with debridement and repair of the biceps tendon). If such aggravation is found, the examiner should address the following medical issues: (a) the baseline manifestations of the Veteran's left shoulder disability found prior to aggravation; and (b) the increased manifestations of the left shoulder disability that are proximately due to the service-connected right shoulder disability. The examiner must provide a clear rationale for the opinion expressed. If the examiner is unable to provide an opinion without a resort to speculation, then he/she should explain why this is so. 4. Thereafter, readjudicate the claims, including consideration of diagnostic codes relating to limitation of motion (38 C.F.R. § 4.71a) and muscle injuries (38 C.F.R. § 4.73). Consideration should be made of all evidence submitted since the issuance of the February 2010 statement of the case. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and given 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). _________________________________________________ K. OSBORNE 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).