Citation Nr: 1605236 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 96-50 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for right shoulder rotator cuff tendonitis, prior to January 22, 2008, and higher than 30 percent, effective January 22, 2008. 2. Entitlement to an initial rating higher than 20 percent for left shoulder rotator cuff tendonitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from December 1992 to July 1995, from December 2000 to November 2001, and from February 2002 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in New York, New York (RO). In October 2013 the Board rendered a decision on the Veteran's appeal. In September 2014 the United States Court of Appeals for Veterans Claims (Court) remanded the Board's decision, pursuant to a Joint Motion for Partial Remand (Joint Motion). The Board remanded the claim in August 2015 so that a VA examination could be provided. The case is now returned for appellate review. Unfortunately, upon review of the file, it appears that additional development is warranted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was provided an examination in November 2015 to assess the present severity of his bilateral shoulder disabilities. The examiner attempted to evaluate whether the Veteran had additional limitation of motion of the shoulders after repetitive use, pursuant to the Joint Motion, but was unable to make this assessment finding that the Veteran was suspected of exaggerating his symptoms. The Veteran noted that he had fallen down the stairs two to three months prior to the examination and had reinjured his right shoulder. He also stated that he had moved to Florida and was trying to get surgery for his left shoulder. He mentioned that he was told prior to his move to Florida that he would need another surgery for his left shoulder. The latest VA treatment records in the VBMS and Virtual VA files are dated in January 2013. As it appears that the Veteran has received more recent treatment for his shoulders, additional treatment records through the present time should be obtained. It also should be determined whether the Veteran has received additional treatment at his present residence in Florida. Given that the case must be returned for the aforementioned reasons and that the Veteran has stated that he might be having surgery for his shoulders, another examination is warranted to assess the present severity of the bilateral shoulder disabilities. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain treatment records pertaining to the Veteran's shoulders from the VA New York Harbor Healthcare System dated from January 2013 to present. If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning this claim. 2. Ask the Veteran to identify any additional treatment he has received for his shoulders, particularly since he has relocated to Florida. Make reasonable efforts to obtain any records identified and notify the Veteran of any negative responses and what further steps VA will make concerning his claim. 3. Schedule the Veteran for an appropriate VA examination of his bilateral shoulders. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, should be performed. The examiner should identify and describe in detail all impairment attributable to the Veteran's service-connected bilateral shoulder disability. The examiner also should do the following: (a) Conduct range of motion testing of the shoulders, specifically noting whether - upon repetitive motion of the Veteran's shoulders - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the shoulders are used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. (b) State whether there is any ankylosis in the scapulohumeral articulation, and if so, the degree of ankylosis including whether it is favorable or unfavorable. (c) State whether there is fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder). (d) State whether there is any malunion of the humerus with moderate or marked deformity. (e) State whether there is recurrent dislocation of the scapulohumeral joint, and if so, discuss the frequency of episodes and guarding of arm movements. (f) State whether the severity of any residual pain and weakness in the shoulders, specifically whether there is any severe pain or weakness. (g) Identify any neurological pathology related to the service-connected shoulder disability, and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot answer the above questions without resorting to speculation or remote possibility, please indicate why that is so. 4. Next, review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner(s) for completion of the inquiry. The RO should then readjudicate the claim. If the benefits remain denied, issue the Veteran a Supplemental Statement of the Case and allow for a reasonable period 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 2014). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).