Citation Nr: 1751860 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-16 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected left shoulder disability prior to November 22, 2013, and in excess of 20 percent since November 22, 2013. 2. Entitlement to an evaluation in excess of 10 percent for service-connected myositis of the mid-back. ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service in the United States Army from January 2002 to January 2006. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and November 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In the August 2010 decision, service connection was granted for a left shoulder disability, and a 10 percent evaluation was assigned, effective June 2, 2010. The Veteran appealed the underlying decision in a Notice of Disagreement received in November 2010. In the subsequent decision, the Veteran's 10 percent evaluation for his service-connected myositis of the mid-back was continued. The Veteran appealed the underlying decision in a Notice of Disagreement received in March 2012. In a January 2014 decision, the evaluation for the Veteran's service-connected left shoulder disability was increased from 10 percent to 20 percent disabling, effective, November 22, 2013. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regarding the increased rating claim for the Veteran's service-connected left shoulder disability, the Veteran was afforded a VA examination in November 2013. The Veteran has consistently reported that since that examination, he experienced increased left should pain, as well as limited movement of the joint. With respect to the remaining increased rating claim, the record reflects that the Veteran was most recently afforded an examination to determine the current degree of severity of his myositis of the mid-back disability in October 2011. The Veteran asserts that the report of the examination in October 2011 does not accurately reflect the severity of his symptoms. In various correspondence, the Veteran reported that he was subsequently treated for arthritis, as well as lordosis that resulted in symptoms of worsened pain and stiffness. Therefore, contemporaneous examinations are warranted to ensure that the record reflects the current severity of the Veteran's service-connected left shoulder and mid-back disabilities with findings responsive to the applicable rating criteria. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, development to obtain any outstanding medical records pertinent to the Veteran's claims should be completed. Specifically, the Veteran recently asserted that he received ongoing treatment for his left shoulder and mid-back disabilities at the VA Medical Center in San Juan, the Commonwealth of Puerto Rico. The record contains VA outpatient treatment record dated in June 2015; thus, any records from June 2015 to the present should be obtained and associated with the record. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C. for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include VA outpatient treatment records from the VA Medical Center in San Juan, the Commonwealth of Puerto Rico, dated in June 2015 to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. The Veteran should be scheduled for a VA examination by an examiner with sufficient expertise to determine the current degree of severity of the Veteran's service-connected left shoulder disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The AOJ should ensure that the examiner provides all information required for rating purposes, including range of motion measurements. The examiner should also describe in detail all functional and occupational impairment resulting from the Veteran's service-connected left shoulder disability. 3. The Veteran should be scheduled for a VA examination by an examiner with sufficient expertise to determine the current degree of severity of the Veteran's service-connected myositis mid-back disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The AOJ should ensure that the examiner provides all information required for rating purposes, including range of motion measurements (both passive and active). The examiner should also describe in detail all functional and occupational impairment resulting from the Veteran's service-connected back disability. 4. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 5. The AOJ should also undertake any additional development deemed necessary. 6. Then, the AOJ should readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). _________________________________________________ B. MULLINS 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) (2017).