Citation Nr: 1508228 Decision Date: 02/25/15 Archive Date: 03/11/15 DOCKET NO. 12-35 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the left shoulder (minor). ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on inactive duty training from June 1991 to August 1991 and active duty from August 2008 to November 2009. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for the left shoulder disability. The RO assigned an initial disability rating of 10 percent, retroactively effective from November 2, 2009, the day following the Veteran's discharge from the active duty. The Veteran filed a Notice of Disagreement (NOD) in April 2012, appealing the initial disability rating assigned. The RO issued a Statement of the Case (SOC) in November 2012. In December 2012, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. In his Substantive Appeal, the Veteran requested a Board hearing. In a June 2013 letter, he was notified that his Board videoconference hearing had been scheduled for August 2013, but he failed to appear for the proceeding and has not provided an explanation for his absence or requested to reschedule the hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d) (2014). The Veteran's paperless claims files were also reviewed and considered in preparing this remand, along with his paper claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. Initially, the most recent VA treatment records in the claims file are currently dated from November 2012 for the Veteran's treatment at the Oklahoma City, Oklahoma, VA Medical Center (VAMC). On remand, all pertinent VA treatment records since this date should be obtained and added to the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2014); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). The Veteran last was afforded a VA examination to determine the severity of the service-connected left shoulder disability in December 2010. The December 2010 VA examination is now over four years old. At the December 2010 examination, the Veteran complained of flare-ups of his left shoulder, but the VA examiner did not express an opinion concerning whether there would be additional functional impairment during such flare-ups of the left shoulder. The Court of Appeals for Veterans Claims has repeatedly held that examinations provided to evaluate the extent of a veteran's functional loss of the musculoskeletal system under rating codes based on limitation of motion must determine whether any pain found to be present could significantly limit functional ability during flare-ups or upon repetitive motion. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see 38 C.F.R. § 4.40 (2014); DeLuca v. Brown, 8 Vet. App. 202, 205-6 (1995). These determinations, should, if feasible, be portrayed in terms of the additional range-of-motion loss due to pain on use or flare-ups. Id. Where this information is not provided in the examination report, or the report does not include an explanation for why this information could not feasibly be provided, the examination report is inadequate for rating purposes. Mitchell, 25 Vet. App. at 44. As the examiner did not express an opinion on whether there would be additional functional impairment to range of motion during such flare-ups, the examination is inadequate to this extent. Given the foregoing and the amount of time that has elapsed since the last examination, the Board finds cause for affording the Veteran another VA examination. 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following actions: 1. Obtain all pertinent VA outpatient treatment records from the VAMC in Oklahoma City, Oklahoma, dated since November 2012 that have not been secured for inclusion in the record. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 2. After obtaining the above records, schedule the Veteran with a VA shoulder examination to determine the current severity of his service-connected degenerative arthritis of the left shoulder (minor). The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his disability, the examiner is asked to state whether the Veteran's service-connected degenerative arthritis of the left shoulder (minor) is manifested by any of the following: * Ankylosis; * Limitation of motion of the left arm; * Impairment of the humerus (malunion, recurrent dislocations, fibrous union, nonunion, and/or loss of head of the humerus); * Impairment of the clavicle (malunion, dislocation, and/or nonunion); and, * Impairment of the scapala (malunion, dislocation, and/or nonunion). In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. 3. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran a Supplemental SOC (SSOC). Afford him the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2014).