Citation Nr: 1332070 Decision Date: 10/04/13 Archive Date: 10/21/13 DOCKET NO. 11-10 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a disability rating in excess of 20 percent for service-connected post operative residuals, acromioplasty with resection of distal clavicle for impingement syndrome, right shoulder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to May 1968 and from January 1984 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above. In August 2011, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals documents which are either duplicative of those already in the claims file or not pertinent to the present appeal. For reasons discussed below, the appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran is seeking to establish a disability rating higher than 20 percent for his service-connected right shoulder disability. There is, however, outstanding evidence that must be obtained before a fully informed decision may be rendered. At the August 2011 hearing, the Veteran testified that he is not working because of his shoulder and heart disabilities and that he has been receiving disability benefits from the Social Security Administration (SSA) since 2005. The Veteran testified that he would attempt to obtain a copy of his SSA decision but, to date, a copy of SSA decision or the actual medical records and reports used by SSA in making its decision are not associated with the evidentiary record. The Veteran did not specifically indicate for which disability he is receiving SSA disability benefits but the Board finds probative that he has asserted being unable to work as a result of a shoulder disability. As a result, the Board cannot determine that no reasonable possibility exists that the SSA records are relevant to the Veteran's claim, particularly given that the Board must consider whether evidence of unemployability has been submitted in conjunction with the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, this claim must be remanded in order for VA to attempt to obtain the Veteran's SSA records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In addition, while the evidentiary record contains treatment records from the Syracuse, New York, VA Medical Center (VAMC) and its affiliates, the Board notes that the last VA treatment record associated with the claims file is dated in January 2011. There is, however, evidence showing the Veteran was given an MRI of his right upper extremity in May 2011, which suggests that he has received treatment for his right shoulder disability since January 2011. Therefore, on remand, the RO will be requested to obtain any outstanding VA treatment records dated from January 2011 to the present. Finally, review of the record reveals that the Veteran was afforded a VA examination in conjunction with his increased rating claim in October 2010. At the August 2011 hearing, the Veteran testified that his right shoulder disability has increased in severity since that time, as he is always in pain and is unable to lift anything. In this regard, the Veteran testified that the weight of his right arm bothers him and that, while he can straighten his arm, he cannot lift it to shoulder level. The Veteran also testified that he experiences weakness in his right arm and that his arm and fingers occasionally go numb. The Veteran is competent to testify regarding his current symptoms and the Board finds his hearing testimony credible. As such, there is evidence of record suggesting that the Veteran's service-connected right shoulder disability has increased in severity since the last VA examination. Accordingly, an updated VA examination is needed in order to fully and fairly evaluate the claim on appeal. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, the case is REMANDED for the following action: 1. Request from the SSA all records related to the Veteran's claim for disability benefits, including all medical records and copies of all decisions or adjudications. All negative responses should be fully documented in the claims file. 2. Obtain the Veteran's treatment records from the VA Medical Center in Syracuse, New York, and its affiliates dated from January 2011 to the present. All efforts to obtain this evidence must be fully documented in the claims file. 3. Thereafter, schedule the Veteran for an appropriate VA examination to evaluate the current nature and severity of his service-connected post operative residuals, acromioplasty with resection of distal clavicle for impingement syndrome, right shoulder (right shoulder disability). Any indicated evaluations, studies, and tests should be conducted. The claims folder must be made available to the examiner for review prior to the examination, and the examination report should reflect that review of the record was accomplished. The examiner must comment on the impact the Veteran's service-connected right shoulder disability has on his employability by specifically providing an opinion as to whether it is at least as likely as not that the Veteran's service-connected disability renders him unable to secure and follow substantially gainful employment. If the examiner determines that he or she cannot offer an opinion on the Veteran's employability without a Social and Industrial Survey, such should be performed. All opinions expressed must be accompanied by supporting rationale. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, with an appropriate period of time should be allowed for response. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed, and he 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). _________________________________________________ MARJORIE A. AUER 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).