Citation Nr: 1333088 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-18 722A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for service-connected right shoulder adhesive capsulitis, status post arthroscopy x2 and reconstruction (major extremity). 2. Entitlement to a compensable disability rating for right knee patellofemoral pain syndrome. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from November 1994 to May 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In April 2010 the Veteran appeared before a Veterans Law Judge and gave testimony in support of her claim. A complete transcript is of record. Subsequently that Veterans Law Judge left employment with the Board. The Veteran was informed of her right to testify at another Board hearing under 38 C.F.R. § 20.717 by letter in June 2013 and given 30 days to respond. No response has been received from the Veteran and thus the Board will proceed with adjudication of the claim. In July 2010, the Board remanded this claim for additional development. While the case was in remand status, the RO granted service connection for a psychiatric disorder and granted a total disability rating based on unemployability due to service connected disability. The case has been returned to the Board and is ready for further review. 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 Reason for remand: to obtain Social Security Administration (SSA) records and to obtain a VA neurological examination. Regarding the issue concerning the right shoulder disorder on appeal, the Board previously remanded the claim to obtain additional information to ensure that the claims file contained all available records and to have the Veteran examined. The Board mandated that the Veteran be evaluated under clearly specified conditions and the Board directed that specific questions be answered by the examiners regarding the disorders on appeal. Review of the file reveals that the mandates presented by the Board were not adequately followed or addressed. In this regard, the Veteran was to undergo a VA neurological examination and a then a VA orthopedic examination. A review of the file shows that she underwent a VA orthopedic examination in October 2010; however she was not scheduled for a VA neurological examination. A remand of this claim is necessary to ensure compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally in a June 2009 VA outpatient treatment note, the Veteran reported that she had plans to move after her SSDI amount is finalized. The medical and legal documents pertaining to her application and denial or grant of benefits have not been associated with the claims folder. The possibility that SSA records could contain evidence relevant to the issues on appeal cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). As the SSA's disability determination and any related medical records have not yet been associated with the claims file, a remand is necessary to obtain these records. Thus, the Board finds that the RO should obtain and associate with the claims file a copy of SSA's disability determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. Request all medical and legal documents pertaining to the Veteran's application for SSA disability benefits. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 2. Arrange for the Veteran to undergo neurological and orthopedic examinations for her right shoulder disorder, currently diagnosed as right shoulder adhesive capsulitis, status post arthroscopy x2 and reconstruction (major extremity). The neurological examination should be conducted first, and that examination report should be made available to the VA orthopedic examiner in conjunction with that examination of the Veteran. Any disabling manifestations specifically attributable to the right shoulder must be fully outlined. The claims file must be made available to each examiner designated to examine the Veteran, and each examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. Each examiner should set forth all examination findings, together with the rationale for the comments and opinions expressed. Any disabling manifestations specifically attributable to the right shoulder disability must be fully outlined and differentiated from symptoms caused by any nonservice- connected disability. The neurologist should describe all neurological manifestations and symptomatology, and offer an opinion as to whether the Veteran has any separately ratable neurological disability, particularly involving the right upper extremity (in addition to her service-connected orthopedic disability) as a manifestation of the service-connected right shoulder disability. The orthopedic examiner should conduct range of motion testing of the right shoulder and arm. There should be specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or in coordination associated with the right shoulder. 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 and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner also should indicate and discuss whether the Veteran's limitation of motion is comparable to ankylosis of the right shoulder and arm and whether such is favorable or unfavorable, and the extent of such impairment. The examiner also should provide an opinion as to the effect that the service-connected right shoulder disability has on the Veteran's current level of occupational impairment. The conclusions of the examiner should reflect review of the claims folder, and the discussion of pertinent evidence. 3. The RO must notify the Veteran that it is her responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and her representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).