Citation Nr: 1330707 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-08 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased evaluation for rotator cuff tendonitis of the left shoulder with impingement secondary to a calcific lesion of the inferior acromion, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from July 1997 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2013, the Veteran testified at a videoconference hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In this case, the Veteran was last provided a VA examination in connection with his current claim for an increased evaluation for his service-connected left shoulder disability in December 2008, which would have been almost five years ago. During the July 2013 hearing, the Veteran testified that his left shoulder symptoms had worsened. See hearing transcript, pp. 10-11. Specifically, he reported that he had difficulty grasping the steering wheel while driving, he experienced increased pain when he raised his left arm above shoulder level, difficulty carrying and lifting heavy objects, weakness, fatigue, and flare-ups of pain. Such evidence suggests a possible increase in severity since the December 2008 VA examination. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected left shoulder disability. In addition, the RO/AMC should obtain and associate with the claims file all outstanding VA treatment records and any identified private treatment records. In a July 2007 statement, the Veteran reported that he had treatment for his left shoulder at the Frank Tejeda VA Outpatient Clinic in San Antonio, Texas. Specifically, he indicated that he underwent a magnetic resonance imaging (MRI) study in March 2007. These records have not been associated with the claims file. Additionally, the claims file currently includes VA treatment records dated through October 2008. Therefore, on remand, any VA treatment records dated after October 2008 should also be obtained. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected left shoulder disability. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should specifically request that the Veteran provide a signed authorization to enable it to obtain all outstanding pertinent medical treatment records from any identified private treatment providers. A specific request should be made for any outstanding VA medical records from the Frank Tejeda VA Outpatient Clinic in San Antonio, to include the results of a March 2007 MRI of the left shoulder. A specific request should also be made for any outstanding VA medical records dated from October 2008 to the present. 2. After completing the preceding development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected left shoulder disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected left shoulder disability. The examiner should report all signs and symptoms necessary for rating the Veteran's left shoulder disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees and indicate whether there is any malunion of the clavicle or scapula, nonunion of the clavicle or scapula, or dislocation of the clavicle or scapula. He or she should also note whether there is any other impairment of the humerus or ankylosis of the scapulohumeral articulation. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of all additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JESSICA J. WILLS 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).