Citation Nr: 1337359 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 08-38 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for status post surgery right shoulder subluxation with residuals of degenerative joint disease, currently assigned a 20 percent disability evaluation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1993 to May 1998. He also served as a cadet at the United States Military Academy at West Point from June 1989 to May 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran provided testimony at a February 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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 the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 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; 38 C.F.R. § 3.159. In this case, the Veteran was afforded VA examinations in March 2006, August 2007, and February 2013. At the most recent examination, the Veteran had 160 degrees of flexion and 140 degrees of abduction with pain at 135 degrees of flexion and 105 degrees of abduction. The February 2013 VA examiner indicated that there was no additional limitation in the range of motion of the shoulder and arm following repetitive use testing, and there was no ankylosis. He also noted that there was a history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint with frequent episodes. However, the examiner did not address whether there was any malunion, fibrous union, or nonunion (false flail joint) of the humerus or whether there was loss of head of the humerus (flail shoulder). X-rays also revealed degenerative joint disease in the glenohumeral joint, yet the record does not indicate if there are any symptoms or manifestations of the arthritis that are not already contemplated in the current evaluation. When the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right shoulder disability. 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 right shoulder disability. After acquiring this information and obtaining any necessary authorization, obtain and associate these records with the claims file. If any of the records requested are unavailable, the RO/AMC should document the claims file to that effect. The RO/AMC should also secure any outstanding VA medical records. 2. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right 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 right shoulder disability. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the Schedule for Rating Disabilities. In particular, the examiner should provide the range of motion of the right shoulder in degrees and state whether there is any form of ankylosis. He or she should also indicate whether there is any impairment of the humerus, such as malunion, recurrent dislocation at the scapulohumeral joint, fibrous union, nonunion (false flail joint), and loss of head (flail shoulder). If there is recurrent dislocation, the examiner should indicate whether the episodes are frequent or infrequent and whether they result in guarding of movement only at the shoulder level or guarding of all arm movements. The examiner should also indicate whether there is any impairment of the clavicle or scapula, such as malunion, nonunion with or without loose motion, or dislocation. In addition, the examiner should identify any symptoms or manifestations that are attributable to degenerative joint disease of the right shoulder. 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. The examiner should specifically indicate whether such findings and/or flare-ups result in additional limitation of the right arm to shoulder level, midway between side and shoulder level, or to 25 degrees from the side. The examiner should further state whether there are any scars related to the Veteran's right shoulder disability. If so, he or she should provide the findings necessary under the rating criteria for scars, such as the size and location and whether the scar is superficial, unstable, or painful. 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 these actions, the RO/AMC should conduct any other development as may be indicated by a response received 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 additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ 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).