Citation Nr: 1340771	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  10-37 677	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a rating in excess of 10 percent for residuals of arthroscopic bankart repair of the left shoulder.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel







INTRODUCTION

The Veteran served on active duty from November 1986 to February 1995.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the Veteran if further action is required.


REMAND

The Veteran contends that his left shoulder disability is more disabling than currently evaluated, maintaining that the severity of the findings on the most recent VA examination, which was conducted in December 2008, were masked by the medications he was taking to treat the disability.  In addition, private physical therapy records dated in October 2010 and statements from the Veteran show that the severity of his left shoulder disability has worsened since the December 2008 VA examination.  

In light of the evidence indicating that the Veteran's left shoulder disability may have worsened since the December 2008 VA examination, the Board finds that a new VA examination is necessary.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  Thus, the Board has no discretion and must remand this claim.  

In addition, the examination report, if possible, the examiner should address the severity of the Veteran's service-connected left shoulder disability without considering the impact of medications to treat his left shoulder disability.  See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that VA may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria).

Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of left shoulder disability and the impact of the disorder on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

2.  After associating any pertinent, outstanding records with the claims folder, schedule the Veteran for a VA joint examination to assess the current severity of his service-connected left shoulder disability.

The entire claim file must be reviewed by the examiner and all necessary tests, to include range of motion studies expressed in degrees and in relation to normal range of motion, should be conducted.

The examiner should describe any pain, weakened movement, excess fatigability, and incoordination present.  To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the left shoulder.

In addition, if possible, the examiner should comment on the Veteran's level of impairment discounting the impact of any medication the Veteran uses to treat his left shoulder disability.

All findings and conclusions should be set forth in a legible report.

3.  Then readjudicate the appeal.  If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board

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 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. 2013).




_________________________________________________
STEVEN D. REISS
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).