Citation Nr: 1432046 Decision Date: 07/17/14 Archive Date: 07/22/14 DOCKET NO. 09-41 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 20 percent for recurrent dislocation of the left shoulder (hereinafter left shoulder disability). 2. Entitlement to service connection for right shoulder rotator cuff impingement. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Betty Jones, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to January 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2007 and June 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. By rating decision in January 2008, the RO increased the left shoulder disability rating to 20 percent, effective November 3, 2006, the date of claim. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issue therefore remains in appellate status and has been characterized as set forth on the front page of this decision. In October 2012, the Veteran testified at a video-conference hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing has been associated with the record. Additional evidence was submitted at the Board hearing along with a waiver of RO consideration. As such, the Board may properly consider this evidence. Further, the Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veterans Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA reveals that, with the exception of the additional VA treatment records dated to January 2012, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Further, the Veteran's VBMS file does not contain any documents at this time. Following the August 2009 statement of the case (SOC) denying a higher rating for the Veteran's left shoulder disability and the May 2011 SOC denying service connection for right shoulder rotator cuff impingement, additional VA treatment records were added to the Veteran's Virtual VA record. This evidence has not been reviewed by the RO. The Board finds that the Veteran is not prejudiced by the adjudication of the claim for service connection for right shoulder rotator cuff impingement as the Board is granting that claim in full. As to the claims for a higher rating for a left shoulder disability and for a TDIU, the Board finds that a remand is necessary. Because this claim is being remanded for additional development, the RO will have the opportunity to review and consider the evidence submitted since the August 2009 SOC. The Board notes that the issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The record includes a September 2012 letter from Dr. R.S. stating that the Veteran is unemployable due to his bilateral shoulder disability. Therefore, the issue of entitlement to a TDIU has been raised. As the Board has jurisdiction over such issue as part and parcel of the Veteran's increased rating claim, it has been listed on the first page of this decision. The issues of entitlement to a rating in excess of 20 percent for a left shoulder disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT Resolving all doubt in the Veteran's favor, right shoulder rotator cuff impingement is proximately due to his service-connected left shoulder disability. CONCLUSION OF LAW The criteria for a grant of service connection for right shoulder rotator cuff impingement have been met as secondary to the service-connected left shoulder disability. 38 U.S.C.A. §§ 1101, 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist With regard to the claim for service connection for right shoulder rotator cuff impingement, the Board is granting this claim in full. Consequently, the Board finds that no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. II. Entitlement to Service Connection The Veteran contends that his current right shoulder disability, diagnosed as rotator cuff impingement, was caused by his service-connected left shoulder disability. The Veteran's service-connected left shoulder disability is evaluated as 20 percent disabling since November 3, 2006. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Affording the Veteran the benefit of the doubt, the Board finds that the evidence establishes that service connection for right shoulder rotator cuff impingement is warranted secondary to his left shoulder disability. The Veteran submitted a September 2009 letter from Dr. R.S., his orthopedic surgeon, which stated, "Because of [the Veteran's] disability with regard to his left shoulder, he has over compensated with his right shoulder and has developed rotator cuff impingement." In April 2011, the Veteran was provided with a VA examination. The examiner determined that it is less likely than not that the Veteran's right shoulder impingement was caused by his recurrent dislocation of the left shoulder and the subsequent surgical repairs. The examiner noted that there was no evidence showing any injury to the right shoulder while the Veteran was on active duty. The examiner's rationale was, "there is no evidence that the veteran's left shoulder condition was involved in the etiology of the right." The Veteran submitted another letter from Dr. R.S. dated in September 2012. Again, Dr. R.S. stated that the Veteran's left shoulder disability caused overcompensation in his right shoulder resulting in rotator cuff impingement, for which he underwent arthroscopic surgery in October 2009. Accordingly, the Board is presented with conflicting medical evidence that is essentially in a state of equipoise as to the medical conclusions to be drawn. In such situations, a decision favorable to the Veteran is mandated by 38 U.S.C.A. § 5107(b). Thus, service connection is warranted for right shoulder rotator cuff impingement. ORDER Service connection for right shoulder rotator cuff impingement, as secondary to service-connected left shoulder disability, is granted. REMAND The Veteran contends that his service-connected left shoulder disability is more disabling than currently evaluated. Having reviewed the record evidence, the Board finds that a remand is necessary in this case. Although the Board regrets the additional delay, a remand should ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran's most recent VA examination for his left shoulder disability occurred in April 2011. The Board notes that the examiner did not consider relevant treatment records contained in the Veteran's Virtual VA claims file. Records dated in January 2011 address the severity of the Veteran's left shoulder disability. They also indicate that the Veteran experienced numbness in both hands. Such symptom was not considered in the April 2011 examination. Furthermore, at his October 2012 Board hearing, the Veteran reported that he was unable to lift his left arm higher than halfway. See October 2012 Board Hearing Transcript, at 4. This suggests that there was a possible worsening in the Veteran's left shoulder disability since his last examination. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in April 2011, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his left shoulder disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before the VA examiner is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. The Board notes that the Veteran receives treatment for his left shoulder disability through the Chicago, Illinois, VA facility. The most recent treatment records associated with the Virtual VA record are dated in January 2012. On remand, updated VA records from such facility should be obtained for consideration in the Veteran's appeal. Finally, as noted above, there is evidence that suggests the Veteran might be unemployable due to his service-connected shoulder disabilities. Therefore, on remand, the Veteran should be provided VCAA notice regarding the information and evidence necessary to substantiate a TDIU, be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and the AOJ should obtain all outstanding treatment records regarding his service-connected disabilities. Additionally, the examiner selected to assess the Veteran's left shoulder disability should provide an opinion as to whether his bilateral shoulder disability renders him unemployable. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the Chicago VA facility dated from January 2012 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding treatment records, schedule the Veteran for a VA examination, by an appropriate physician, to determine the current severity and all manifestations associated with the Veteran's service-connected left shoulder disability. The contents of the entire claims file (paper and electronic) to include a complete copy of this Remand, must be made available to individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All clinical findings should be reported in detail. The examiner is asked to address the following: a. Describe the condition of the Veteran's left shoulder disability and indicate whether there is evidence of ankylosis of the scapulohumeral articulation (the scapula and the humerus move as one piece), and, if so, is it favorable, unfavorable (abduction limited to 25 degrees from side), or ankylosed between favorable and unfavorable? b. Provide findings for the Veteran's range of motion for the left shoulder. State whether motion is limited to the shoulder level, midway between the side and shoulder level, or to 25 degrees from the side. c. Determine whether there are objective signs of left shoulder pain and whether any such pain could significantly limit functional ability during flare-ups or when the affected part is used repeatedly over a period of time. This determination must, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. d. Address whether the left shoulder disorder results in weakened movement, excess fatigability or incoordination, and, if feasible, any determination should be expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability or incoordination. e. Address the January 5, 2011 treatment record indicating that the Veteran experiences numbness in both hands. Comment as to whether any such numbness is due to the Veteran's left shoulder disability. f. The examiner is also requested to discuss the overall level of functional impairment attributable to the Veteran's service-connected left shoulder disability. g. Render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected bilateral shoulder disability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. A complete rationale for all opinions must be provided. 3. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal in light of all pertinent evidence (to include all that added to the record since the last adjudication) and legal authority. Specifically consider whether a separate rating under any other diagnostic code (to particularly include Diagnostic Code 5201) is warranted. 4. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran 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. 2013). ______________________________________________ J.N. MOATS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs