Citation Nr: 1410102 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-23 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a compensable disability rating for recurrent bicep tendinitis, right shoulder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1986 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's claim for entitlement to a compensable rating for recurrent bicep tendinitis, right shoulder. A hearing was held on October 31, 2011, in Philadelphia, Pennsylvania, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. 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 The Veteran contends that his service-connected shoulder disability has worsened and warrants a compensable evaluation. The RO scheduled the Veteran for two VA examinations for his shoulder disability, to which the Veteran did not report. At the October 2011 Board hearing, the Veteran explained that he had missed the scheduled examinations because side effects of prescribed medications caused him to oversleep and because he experienced a death in the family. The Board finds that the Veteran has shown good cause for missing these examinations, and on remand, he should be rescheduled for a VA examination of his joints. See 38 C.F.R. § 3.655 (2013). In December 2011, the Veteran submitted a letter from a private treatment provider indicating that the Veteran's shoulder had a limitation of range of motion more severe than is currently contemplated by his noncompensable rating. However, the letter did not provide sufficient information, such as measurements regarding painful motion and additional loss of function after repetitive use, with which to evaluate the Veteran's service connected disability under the appropriate rating criteria. In finding that further development, including a VA examination, is necessary to adjudicate this appeal, the Board acknowledges the United States Court of Appeals for Veterans Claims (Court) decision in Mariano v. Principi, 17 Vet. App. 305 (2003). In this regard, the Board notes that although Mariano states that it "would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case," the Court has held that VA may undertake the development of additional evidence if, as here, it is necessary to render an informed decision on the claim. See Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano, 17 Vet App. at 312). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate VA medical professional to assess the current severity of his service-connected shoulder disability. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. All necessary and appropriate tests should be performed, including range of motion tests using a goniometer. All subjective complaints and objective findings should be documented, and all diagnoses appropriate to the Veteran's symptoms should be noted. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination, flare-ups, and repetitive motion. All symptoms should be reported in detail. 2. After completion of the aforementioned development, readjudicate the issue of entitlement to a compensable disability rating for the Veteran's service-connected recurrent bicep tendinitis, right shoulder, in light of all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).