Citation Nr: 1338218 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-20 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an evaluation in excess of 10 percent for a right shoulder disability with rotator cuff tears. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to November 1992. This matter comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 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 In October 2009 the Veteran was last afforded a VA examination to address the severity of his service-connected right shoulder disability. The examination report documents, inter alia, that the Veteran reported pain in the shoulder with most activity, although he had good strength and good range of motion. The examination report reflects that the Veteran was then working as a maintenance aid and was required to perform mopping, sweeping etc., and that the he complained of frequently dropping things with the right hand. Of record is a January 2010 VA primary care note relating to a complaint of right shoulder pain and "not able to grip with that hand." At this time, the Veteran complained of increased right shoulder pain and numbness into the fingers, particularly the middle to little finger of the right hand, and without a history of injury or strain. He reported such symptoms as occurring for over a year, with worsening pain and increased weakness of grip in the right hand over the last 4 to 5 months. Subsequent VA records document that surgery was being contemplated on the Veteran's right shoulder. See e.g. December 2010 VA Orthopedic Case Management Note. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Nonetheless, the Board is not required to remand an appealed disability benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (April 7, 1995). As the Veteran's complaints and the discussion of surgical intervention indicate possible worsening of the service-connected right shoulder disability, the Veteran should be afforded a new VA examination to address the severity of this condition. The Board notes that in a September 2009 statement, the Veteran indicated treatment for his right shoulder from two private medical providers, namely, Summit Medical Group and Dr. Bruce Holladay. The RO obtained records from the Summit Medical Group at the Veteran's request, but it is unclear as to whether the Veteran requested VA's assistance in obtaining records from Dr. Holladay. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. 38 C.F.R. § 3.159(c)(1) (2013). Upon remand, the Veteran must be asked to execute a VA Form 4142, so that VA may attempt to obtain any records from Dr. Holladay. The Veteran should also be advised that he may alternatively submit these records. Also, the Board notes that the Veteran receives fairly regular treatment at the Louisville, Kentucky, VA Medical Center (VAMC). The latest records associated with the claims file are dated on November 28, 2011. Consequently, VA should obtain any VA records not currently associated with the claims file, particularly any dated from November 28, 2011, and on. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA medical records not currently associated with the record, particularly any records dated after November 28, 2011. If there are no such records, documentation to this effect should be associated with the claims folder or the electronic record. 2. Forward the Veteran a VA Form 21-4142 for his execution and inform him of the necessity of executing this release and the consequences of failing to cooperate with VA's reasonable efforts to obtain medical records from Dr. Bruce Holladay. If the Veteran returns the release, attempt to obtain these records. Perform any follow-up as necessary and document any negative results, should the Veteran request VA's assistance in attempting to obtain these records. In any event, advise the Veteran that he may submit these records. 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected a right shoulder disability with rotator cuff tears. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. The examination report should specifically state the degree of disability present in the Veteran's right shoulder and his current range of motion in this joint, as well as identify and document any objective evidence of pain, weakness, catching, incoordination, fatigability, etc. Any neurological abnormalities resulting from the service-connected disability, i.e. numbness, weakness, etc., as well as any related surgical scarring should be addressed in the examination report. The clinician should also discuss how the Veteran's disability impacts his daily activities of living. The extent of any weakened movement and excess fatigability on use should be described, with objective confirmation thereof. To the extent possible, the functional impairment due to weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. Range of motion studies should be conducted using a goniometer and the use thereof should be noted in the examination report. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. Then, after conducting any additional indicated development, readjudicate the claim currently on appeal. If the maximum benefit sought on appeal remains denied, issue a Supplemental Statement of the Case and provide the appellant and his representative an appropriate period of time to respond before this case is returned to the Board. (CONTINUED ON NEXT PAGE) The appellant 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). _________________________________________________ BETHANY L. BUCK 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).