Citation Nr: 1751916 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-09 670A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an increased rating for residuals of laryngeal cancer with limitation of motion and degenerative changes, left shoulder, evaluated as 20 percent disabling. 2. Entitlement to an increased rating for residuals of laryngeal cancer with degenerative cervical spine disc disease and muscle group XXII and XXIII atrophy, evaluated as 10 percent disabling prior to January 20, 2012; 20 percent disabling prior to June 6, 2012; and 30 percent disabling thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran had active service from March 1969 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. That rating decision granted an increase to 20 percent for the residuals, cervical spine, effective January 2012, and continued the 20 percent rating for the residuals, left shoulder. In March 2013, the Veteran submitted a notice of disagreement (NOD) with the evaluations along with a new claim of entitlement to service connection for a lung condition. A statement of the case (SOC) in April 2013 continued the 20 percent ratings for the residuals, cervical spine and left shoulder. The Veteran submitted a timely substantive appeal in April 2013. Specific to the issue of service connection for a lung condition, the information of record reflects that the RO denied this discrete claim in a January 2014 rating decision. The RO sent the Veteran and his representative a letter to this effect on January 13, 2014, along with a copy of the rating decision and notice of his appellate rights. As the record shows, the Veteran did not submit a NOD that contested the denial of service connection for a lung condition. In any event, the RO inappropriately announced the decision to deny service connection for a lung condition in the supplemental statements of the case (SSOCs) dated January 2014, July 2015, December 2015, and March 2016, which was an action not in accordance with the governing regulation. 38 C.F.R. § 19.31(a) (2014, 2017) ("In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on a newly appealed issue that was not addressed in the Statement of the Case"). Given these circumstances, and given that a NOD specific to the lung condition was not filed within one year from the date of the January 2014 notice letter, the Board lacks jurisdictional authority to consider the merits of this issue on appeal. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2014, 2017); see also Percy v. Shinseki, 23 Vet. App. 37, 41-44 (2009) (explaining that the filing of a notice of disagreement in accordance with 38 U.S.C.A. § 7105 (c) is a jurisdiction requirement to appellate consideration and may not be waived). Accordingly, the issue of entitlement to service connection for a lung condition is not on appeal to the Board. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 19.31(a). The issue of entitlement to service connection for a neck scar has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal was processed using the Virtual Benefits Management System and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. The issues on appeal are being REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Increased rating for residuals of laryngeal cancer with limitation of motion and degenerative changes, left shoulder Subsequent to the issuance of the most recent examination report in September 2015, the Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA joint examination is adequate. In this regard, the previous VA examination reports do not indicate whether range of motion findings for the left shoulder were measured in both active and passive motion and/or in weight-bearing and nonweight-bearing. Additionally, the Veteran's August 2017 Brief, submitted by his representative, alleged that this disability had worsened since the previous examination in September 2015. While mere passage of time alone does not require a new examination be afforded to the Veteran, evidence of worsening supports the need for a current examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the Veteran must be afforded a new VA examination in compliance with the findings of Correia to determine the current severity of the left shoulder disability. Increased rating for residuals of laryngeal cancer with degenerative cervical spine disc disease and muscle group XXII and XXIII atrophy Similarly, the cervical spine claim must also be remanded for a new examination conducted in compliance with Correia. The Veteran's representative also alleged that this disability had worsened since the 2015 VA examination was conducted. Accordingly, the Veteran must be afforded a new VA examination in compliance with the findings of Correia to determine the current severity of the cervical spine disability. Finally, as the matter is being remanded for the reasons above, updated VA and private treatment records documenting treatment for the issues on appeal should be obtained and associated with the claims file. See 38 C.F.R. § 3.159(c)(2) (2017); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Centers and obtain and associate with the claims file all outstanding records of treatment. 2. Contact the Veteran and afford him the opportunity to identify any relevant medical records by name, address, and dates of treatment or examination for his left shoulder and cervical spine conditions. After securing the proper authorizations where necessary, obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the claims file. 3. If any treatment records, either VA or non-VA, cannot be obtained after reasonable efforts, issue a formal determination documented in the claims file that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 4. After the foregoing development has been completed to the extent possible, schedule new VA examinations to evaluate the severity of the Veteran's service-connected left shoulder and cervical spine disabilities. The claims file and copy of this REMAND must be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder has been reviewed. All indicated tests must be accomplished and all clinical findings must be reported in detail. In order to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test and record the range of motion for BOTH shoulders and the cervical spine in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional functional impairment of the left shoulder or cervical spine disabilities on repeated use or during flare-ups (if the Veteran describes 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. A separate examination for muscle group injuries should be conducted in conjunction with the cervical spine disability, per the findings of previous examinations and the current rating recognizing impairment of muscle groups XXII and XXIII. The examiner should comment on the impact of the Veteran's left shoulder and cervical spine disabilities on his ability to work and describe any interference with daily and/or occupational activities. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably make clear the medical guidance in the study of this case. 5. Review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated and then re-adjudicate the claims. If any determination remains adverse to the Veteran, the AOJ should furnish an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. Then return the case to the Board, if in order, for further review. 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. §§ 5109B, 7112 (West 2014). _________________________________________________ DEBORAH SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).