Citation Nr: 1341944 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 09-03 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a thoracolumbar disability. 2. Entitlement to a rating in excess of 10 percent for a right rotator cuff strain. 3. Entitlement to a rating in excess of 10 percent for a left knee strain with degenerative joint disease. 4. Entitlement to a rating in excess of 10 percent for a right knee strain. 5. Entitlement to a compensable rating for radiculopathy of the left lower extremity. 6. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for left shoulder bursitis. 7. Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1981 to March 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The issues have been recharacterized to comport with the evidence of record. 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 a letter dated August 20, 2013, the Veteran was notified of a scheduled hearing before a Board of Veterans' Appeals Travel Board on September 12, 2013. He failed to report for that hearing. On October 10, 2013, the Veteran notified the RO that he recently moved and received notice of his hearing after the scheduled hearing. He provided an updated mailing address and requested that the hearing be rescheduled. The appellant or his representative may request a change in the hearing date, in writing, within 60 days of the date of the notification letter or not later than two weeks prior to the scheduled hearing date, whichever is earlier. 38 C.F.R. §§ 20.702(c)(1) (2013). After the timeframe described, the hearing date becomes fixed and an extension of time for appearance at a hearing will only be granted for good cause. As the Veteran's request for a new hearing date was received after the scheduled hearing, good cause must be shown. All reasonable doubt is afforded to the Veteran and the Board will assume that he did not receive notice of the scheduled hearing in a timely fashion to either appear for the hearing or request a postponement. 38 C.F.R. § 20.704(d). Thus, good cause is shown and the Veteran's motion to reschedule his Travel Board hearing is granted. Because the Board may not proceed with an adjudication of the Veteran's claim without affording him the opportunity for such a hearing, a remand is required. See 38 U.S.C.A. § 7107(b); 38 C.F.R. § 20.704. The Veteran provides a competent and credible account of neck pain during service, including continuous symptoms since separation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A May 2011 MRI indicates that the Veteran also has a current diagnosis that includes a cervical disc bulge and mild foraminal narrowing. The evidence of record, however, does not contain sufficient medical evidence to decide the claim and a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, in a statement dated April 2008, the Veteran asserted that his neck disability is related to his service connected right rotator cuff strain. As the evidence of record is insufficient to decide the applicable theory of service connection, further development under the duty to assist is needed. The Veteran provided a competent and credible account of left shoulder pain during service, including continuous symptoms since separation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A July 2003 VA examination provided a diagnosis of left shoulder bursitis. Subsequent private treatment records continue a diagnosis of left shoulder bursitis and note some early degenerative changes in the AC joint. The evidence of record, however, does not contain sufficient medical evidence to decide the claim and a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a neck examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's neck disability, to include a cervical disc bulge and mild foraminal narrowing is related to service or aggravated by his service connected right rotator cuff strain. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for a shoulder examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. The RO should schedule the Veteran for a Travel Board hearing before a Veterans Law Judge to be held at the Seattle, Washington RO at the next available opportunity. 4. Review the claim file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If any of the benefits remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ RONALD W. SCHOLZ 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).