Citation Nr: 1342630 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 10-20 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an evaluation in excess of 10 percent for service-connected residuals of right shoulder separation with degenerative changes. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1991 to November 2002 and from February 2003 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's claim. In August 2013, the Veteran presented sworn testimony at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A review of the record shows that the Veteran was last afforded a VA examination in August 2008 as to his service-connected right shoulder disability. He essentially contends that his service-connected disability has since increased in severity. See the August 2013 Board hearing transcript, pgs. 5 and 9. Specifically, the Veteran testified at the August 2013 Board hearing that he has increased limitation of daily activities, weakness, and limitation of right shoulder motion. He also stated that he has difficulty sleeping due to right shoulder pain and also has greater difficulty lifting his daughter. In light of the foregoing, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran's service-connected right shoulder disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) [Court determined that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating]; Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) [VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse]. The Board also notes that during the above-referenced hearing in August 2013, the Veteran indicated that he currently receives VA treatment for his right shoulder disability. See the August 2013 Board hearing transcript, page 6. The Board observes that the claims folder is negative for any VA treatment records after July 2003. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claim remanded herein. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Request any VA treatment records dated after July 2003 pertaining to the Veteran's right shoulder disability. All attempts to secure this evidence must be documented in the claims folder/Virtual VA eFolder. 3. After the above development is completed, to the extent possible, schedule the Veteran for a VA examination for his service-connected residuals of right shoulder separation with degenerative changes. The claims folder is to be provided to the examiner for review in conjunction with the examination. The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected right shoulder disability as well as any neurological and orthopedic manifestations. In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain as well as the impact of weight-bearing on the Veteran's range of motion. Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation. In particular, the examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the joint. It is important for the examiner's report to include a description of the above factors that pertain to functional loss due to the right shoulder disability that develops on use. Based on current examination of the Veteran as well as review of the evidence of record to include postservice treatment reports and prior physical examinations of the Veteran, the examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. Any report prepared must be typed. 4. Thereafter, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ MICHAEL A. PAPPAS 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).