Citation Nr: 1336217 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-12 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent residuals, recurrent separation, left shoulder (non-dominant) status post reconstruction. 2. Entitlement to an initial compensable rating for neuropathy, saphenous nerve, left lower extremity status post hamstring autograft. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from October 1998 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board observes that the issue of entitlement to a compensable evaluation for perforated left eardrum was also appealed by the Veteran and, although not listed in the issues, addressed in the body of a March 2009 statement of the case. However, in his substantive appeal, the Veteran clearly stated that he only wished to continue his appeal with respect to the issues of entitlement to higher ratings for residuals, recurrent separation, left shoulder (non-dominant) status post reconstruction and neuropathy, saphenous nerve, left lower extremity status post hamstring autograft. See Evans v. Shinseki, 25 Vet. App. 7, 14-15 (2011). As such, the issue of entitlement to a compensable evaluation for perforated left eardrum is no longer in appellate status and not currently before the Board. 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 claims. A review of the Veteran's Virtual VA electronic claims folder reveals that the documents are either duplicative of records already associated with the paper claims file or are not relevant to the issues on 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). With respect to the issues on appeal, the Veteran was most recently afforded VA examinations in March 2008, over five years ago. However, in his April 2009 substantive appeal, the Veteran indicated that his disabilities had increased in severity since the last VA examinations. Specifically, full range of motion was observed at the March 2008 examination for the left shoulder, but in his substantive appeal, the Veteran reported that due to pain, his range of motion was limited to just below shoulder level on a daily basis. Moreover, at the neurological examination, the Veteran reported intermittent numbness of the left saphenous nerve distribution. However, in his substantive appeal, he reported numbness 90 percent of the time. The Board also observes that the claims file was not available for review in conjunction with the March 2008 VA examination with respect to the Veteran's neuropathy of the left lower extremity. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Accordingly, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's service-connected left shoulder and left lower extremity disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Moreover, it appears that the Veteran has received treatment for his disabilities through private providers as well as at the VA Medical Center (VAMC) in Houston, Texas. In this regard, the claims file includes VA treatment records dated to September 2007. Further, review of the claims file reveals that the agency of original jurisdiction (AOJ) has requested and received all previously identified private treatment records with the exception of any clinical records from B. A. Barker, DO, MBA, PA. While the AOJ requested such records, the claims file only contains a May 2008 letter from Dr. Barker indicating that the Veteran had been his patient for two years and describing the current severity of the Veteran's left shoulder and left shin. Thus, the Board finds that efforts should be made to ensure that all pertinent VA and any additional private medical records have been associated with the Veteran's record. In this regard, VA treatment records dated from September 2007 to the present should be obtained. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, any additional private treatment records, to specifically include records from Dr. Barker, should also be obtained, after receipt of any necessary authorization and consent from the Veteran, and then associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran (i.e., a completed and signed VA Form 21-4142) and any additional information deemed necessary, the AOJ should request any additional private treatment records pertaining to his service-connected residuals, recurrent separation, left shoulder (non-dominant) status post reconstruction and neuropathy, saphenous nerve, left lower extremity status post hamstring autograft, to specifically include any clinical records from Dr. Barker. The AOJ should also obtain any VA treatment records dated from September 2007 to the present. Any and all negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 2. After obtaining all outstanding treatment records, the Veteran should be scheduled for appropriate VA examination(s) to determine the severity of his service-connected residuals, recurrent separation, left shoulder (non-dominant) status post reconstruction and neuropathy, saphenous nerve, left lower extremity status post hamstring autograft. The claims folder should be made available to the examiner(s) for review. With respect to the left shoulder, the appropriate examiner should conduct range of motion testing and, to the extent possible, should indicate (in degrees) the point at which any motion is limited by pain. The examiner should also offer an opinion as to the extent, if any, of additional functional loss due to incoordination, weakness and fatigue, including during flare-ups. With respect left lower extremity, the appropriate examiner should opine as to whether this disability results in severe to complete paralysis of the internal saphenous nerve. With respect to both disabilities, the examiner(s) should also comment on the Veteran's functional impairment with respect to his activities of daily living and the effect on his employment and daily life. The rationale for any opinion offered should be provided. 3. 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 claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).