Citation Nr: 1435239 Decision Date: 08/07/14 Archive Date: 08/20/14 DOCKET NO. 11-27 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left shoulder condition. 2. Entitlement to an initial rating in excess of 20 percent for status post cervical repair x3 with scars, right shoulder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Archer, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1984 to May 1988, August 2004 to May 2005, and January 2007 to May 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for a left shoulder condition and granted service connection for a right shoulder condition, and assigned a noncompensable disability evaluation. In a September 2011 Statement of the Case (SOC), the RO increased the disability rating for status post surgical repair x3 with scars, right shoulder from zero to 20 percent. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran reported at a March 2011 RO Informal Conference hearing that he was treated at the Ashville VA Medical Center (VAMC) for his left shoulder on March 3, 2011. While there is some indication the Veteran was seen on that date, the detailed treatment notes have not been associated with the claims file. There is also an indication that there were additional appointments scheduled in March and April 2011 at the Ashville VAMC. However, the most recent VA treatment records associated with the claims file are dated through February 16, 2011. VA has a duty to obtain any more recent treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran was afforded a VA/QTC examination in June 2010. He reported experiencing flare-ups of his right shoulder condition five times per week, precipitated by physical activity. While the examiner assessed the Veteran's range of motion upon repetitive-use testing, an opinion was not provided as to the estimated loss of range of motion during flare-ups. As a result, the examination is inadequate. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups). The Board therefore finds that a remand is necessary to assess the current severity of the Veteran's disability and to obtain an opinion which will specifically address the nature and severity of any additional functional limitations, including limitation of motion, during flare-ups. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding treatment records from the Ashville VAMC since February 2011. 2. Schedule the Veteran a for a VA examination to determine the current severity of his right shoulder disability. The claims file must be reviewed by the examiner. A complete assessment should be provided, to include range of motion testing. The examiner must provide an opinion as to the estimated loss of degree of range of motion of the right shoulder during flare-ups. Regardless of whether current flare-ups are reported, the examiner must still comment on the flare-ups reported on the June 2010 VA/QTC examination. The examiner should also determine whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. If the examiner cannot provide an opinion without resort to speculation, he or she must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. Thereafter, the claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond. 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). _________________________________________________ ERIC S. LEBOFF 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).