Citation Nr: 1633164 Decision Date: 08/22/16 Archive Date: 08/26/16 DOCKET NO. 13-24 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for prostate cancer, to include residuals of prostate cancer surgery, claimed as a result of exposure to ionizing radiation. 2. Entitlement to an initial rating in excess of 20 percent for left shoulder impingement syndrome with acromioclavicular arthritis and internal derangement (previously rated as left shoulder tendinitis). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jaime M. Porter, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to April 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated August 2013 (as to an increased rating for left shoulder impingement syndrome) and May 2014 (as to service connection for prostate cancer), which were issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in May 2016. A copy of the transcript of this hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon review of the record, the Board finds that further development is required before a decision on the merits can be made as to the Veteran's entitlement to service connection for prostate cancer and to an increased rating for left shoulder impingement syndrome. The August 2013 statement of the case regarding the Veteran's left shoulder impingement syndrome cites VA medical center (VAMC) treatment records from the Oklahoma City VAMC dated from December 2010 through August 2013, while the August 2015 statement of the case regarding entitlement to service connection for prostate cancer cites Oklahoma City VAMC treatment records dated from October 2001 through August 2015. The Veteran's claims file contains Oklahoma City VAMC treatment records only for the periods from October 2011 through August 2013 and from April 2014 through May 2015. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (West 2014); Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, on remand, the AOJ must obtain all outstanding VA treatment records and associate them with the claims file. All attempts to obtain these records must be documented and the Veteran and his representative must be notified of any inability to obtain the requested documents. In addition, the record reflects that the Veteran received physical therapy for his left shoulder at Tricare in Lawton, Oklahoma, and at Redbud Occupational and Physical Therapy. There is no indication in the Veteran's claims file that any attempt has been made to obtain these treatment records. When reference is made to pertinent private medical records, VA is on notice of their existence and has a duty to assist the Veteran in attempting to obtain them. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). On remand, the Veteran must be provided an opportunity to identify and authorize release of relevant private treatment records, specifically to include those from Tricare and from Redbud Occupational and Physical Therapy. If the Veteran identifies outstanding private treatment records, appropriate efforts must be made to obtain the records and associate them with the claims file. 38 C.F.R. § 3.159(c)(1). The Board also notes that the Veteran's testimony suggest that the severity of the shoulder disorder has increased since it was last examined in 2013. In this regard, during the hearing he stated that at times he is not able to move the shoulder at all. Therefore, another VA shoulder examination is necessary to determine the current severity. Finally, review of the record shows that the Veteran was not provided VCAA notice letters with regard to his claims for entitlement to service connection for prostate cancer or for an increased rating for left shoulder impingement syndrome. Thus, on remand, proper VCAA notice must be provided with respect to both claims, to include specific notice with regard to the ionizing radiation aspect of this prostate cancer claim. Accordingly, the case is REMANDED for the following action: 1. Provide a VCAA notice letter to the Veteran and his representative as to the information and evidence necessary to substantiate his claims for an increased rating for left shoulder impingement syndrome with acromioclavicular arthritis and internal derangement and for entitlement to service connection for prostate cancer, to include as due to ionizing radiation exposure, with specific notice regarding the ionizing radiation aspect of his prostate cancer claim and discussion of the criteria for consideration in the assignment of a disability rating and an effective date, in the event of award of the benefit sought. See 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 2. Provide the Veteran with a VA Form 21-4142, Authorization and Consent to Release Information to VA, to identify all relevant treatment from private health care providers. The Board is particularly interested in physical therapy treatment records from Tricare in Lawton, Oklahoma, and from Redbud Occupational and Physical Therapy. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. Allow for an appropriate amount of time for response and complete any additional development resulting from the Veteran's response. See 38 C.F.R. § 3.159(c)(1), (e). 3. Obtain all relevant VA treatment records from the VA medical center in Oklahoma City, Oklahoma, and from any associated outpatient clinics, and associate them with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested records. See 38 C.F.R. § 3.159(c)(2), (e). 4. Afford the Veteran a VA examination to determine the current severity of his left shoulder disorder. The examiner must review the claims file and should note that review in the report. All indicated studies should be performed if deemed necessary by the examiner for the evaluation of the Veteran under the pertinent rating criteria. The examiner should identify all symptoms and impairment associated with the Veteran's left shoulder disability, noting their frequency and severity. When measuring range of motion, the examiner should specifically state the degree at which any pain begins. The examiner should also address whether there is any additional functional loss due to excess motion, weakened motion, fatigability, incoordination, pain, or during flare-ups. The examiner should specifically address the impact the disability has on the Veteran's ability to do tasks associated with employment. 5. After completing the above development, and any other development deemed necessary, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate 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 2014). _________________________________________________ MICHAEL MARTIN 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).