Citation Nr: 1333724 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-26 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 20 percent for right shoulder tendonitis. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1974 to October 1994. This matter is before Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent rating for right shoulder tendonitis. An interim (August 2008) rating decision by the Huntington, West Virginia RO assigned a temporary total (100 percent) convalescence rating pursuant to 38 C.F.R. § 4.30 for the period from March 27, 2008 to August 1, 2008. The Veteran's claims file is now in the jurisdiction of the Atlanta, Georgia RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND At the outset, the Board notes that in June 2010, VA received a VA Form 9 in which the Veteran perfected his appeal regarding the rating assigned for his right shoulder tendonitis. His appeal was certified to the Board in May 2013; he was so notified by letter dated May 24, 2013. In correspondence in response he suggested that there should not be an appeal before the Board; however, he did not expressly state that he wished to withdraw the appeal (or submit anything in writing to that effect). As his intent as to this appeal is not clear, clarification is needed. He is advised that if he seeks to withdraw the appeal he must expressly do so in writing.. See 38 C.F.R. § 20.204. If the appeal is not withdrawn, a review of the record found that further development of the evidence is necessary. The Veteran was last afforded a VA examination in April 2010. A VA treatment record shows that he continues to be seen for right shoulder complaints; correspondence from the Veteran indicates he has problems with the shoulder. In light of the length of the intervening period since the April 2010 examination and the apparent allegation of worsening, a contemporaneous examination to assess the shoulder is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, select private treatment records from Palmyra Medical Center, Premier Orthopedics, and Phoebe Putney Memorial Hospital are associated with the claims file and show the Veteran has received treatment for his right shoulder disability from these providers. However, complete treatment records are not associated with the claims file. As such records are likely to contain information pertinent to the matters on appeal, VA has an obligation to secure them for the record. 38 C.F.R. § 3.159(c)(1). Furthermore, the record reflects that the Veteran continues to receive VA treatment for his right shoulder. Updated records of VA treatment for the disability at issue are likely to contain pertinent information, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to clarify his intentions regarding the instant appeal; advise him that if he wishes to withdraw the appeal he must expressly do so in writing. Afford him opportunity to respond. 2. If the appeal is not withdrawn, ask the Veteran to identify the providers of all evaluations and/or treatment he has received for his right shoulder tendonitis since March 2008, and to provide the authorizations necessary for VA to obtain all outstanding records of any such private evaluations or treatment he has received (to specifically include at Palmyra Medical Center, Premier Orthopedics, and Phoebe Putney Memorial Hospital). The RO should secure for the record copies of the complete clinical records of all evaluations and treatment from the sources identified. The RO should specifically secure the updated records of all VA treatment the Veteran has received for his right shoulder tendonitis from May 2013 to the present. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to a VA request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 3. The RO should then arrange for an orthopedic examination of the Veteran to ascertain the current severity of his right shoulder tendonitis. His entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies (specifically including range of motion studies) should be completed. The examiner should note whether there are further functional limitations due to pain, weakness, fatigue and/or incoordination. 4. The RO should then review the record and readjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, 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 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). _________________________________________________ GEORGE R. SENYK 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).