Citation Nr: 1341572 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 11-08 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased evaluation in excess of 30 percent for service-connected recurrent subluxation status post rotator cuff repair with arthroplasty scar of the right shoulder with glenohumeral arthritis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to July 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2010 and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2012, the Veteran testified at a Board hearing via live videoconference before the undersigned. A transcript of this hearing is of record. A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. In particular, the Veteran should be provided with a new VA examination for his recurrent subluxation status post rotator cuff repair with arthroplasty scar of the right shoulder with glenohumeral arthritis. Remand may be required where the record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). The Veteran contends that his right shoulder condition is worse than reflected by his current 30 percent evaluation. To this effect, the Veteran testified at his July 2012 Board hearing that he has significant impairment and limitation in the types of activities in which he can engage, both occupationally and in activities of daily living. In addition, the Veteran reported additional symptoms, not previously mentioned in previous treatment records or examinations, such as flare-ups that occur when sleeping and a "shocking" pain in his right upper extremity. The Veteran was provided with VA examinations in October 2010 and January 2011. At both of these examinations the Veteran reported flare-ups that occur with cold and damp weather and physical activity. However, there was no mention of flare-ups that occur with sleep. Furthermore, there was no discussion of any neurologic symptoms or of any "shocking" pain to the right upper extremity. The duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, it is necessary to obtain a new examination in order to assess the current severity of the Veteran's recurrent subluxation status post rotator cuff repair with arthroplasty scar of the right shoulder with glenohumeral arthritis. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal since January 2011. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of the Veteran's recurrent subluxation status post rotator cuff repair with arthroplasty scar of the right shoulder with glenohumeral arthritis. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. The examiner should address the Veteran's complaint that he experiences flare-ups during his sleep. The examiner should express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. The examiner must also address any neurological impairment caused by the Veteran's right shoulder disability. 3. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained that shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC/RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. 2013). _________________________________________________ TANYA A. SMITH Acting 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).