Citation Nr: 1706964 Decision Date: 03/07/17 Archive Date: 03/16/17 DOCKET NO. 11-12 118 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a right shoulder strain and tendonitis. 2. Entitlement to an initial, compensable rating for residuals of a partial tear of the left hamstring muscle. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active duty service from July 2009 to December 2009, and from January 2010 to June 2010. He also has additional service in the National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2010 rating decision in which the RO granted the Veteran's claims for service connection for a right shoulder strain and tendonitis, as well as for residuals of a partial tear of the left hamstring muscle, assigning initial ratings of 10 percent and zero percent (noncompensable), respectively, each effective June 26, 2010. In December 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2011 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2011. As the Veteran disagreed with the initial ratings assigned following the awards of service connection for the disabilities under consideration, the Board has characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). As for the matter of representation, the Board observes that, in June 2010, the Veteran submitted a VA Form 21-22 (Appointment of Veterans Service Organization (VSO) as Claimant's Representative) in which he designated the American Legion as his representative. In May 2013, the Veteran submitted a new VA Form 21-22 in which he appointed the Disabled American Veterans as his representative. The Board recognizes this change in representation. In November 2015, the Board remanded the claims on appeal for additional development. This appeal is now being processed utilizing the paperless, electronic Virtual Benefits Management System (VBMS) and Virtual VA (VVA) claims processing systems. The Board's decision addressing the claim for higher rating for partial tear of the left hamstring muscle is set forth below. The claim for higher rating for a right shoulder strain and tendonitis is addressed in the remand following the order; this matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Since the June 26, 2010 effective date of the award of service connection, overall moderate muscle disability has been demonstrated in the left hamstring, with no evidence of moderately severe muscle disability such as palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles. 3. The schedular criteria are adequate to rate the disability under consideration at all pertinent points, and no claim of unemploybility due to the disability under consideration has been raised. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent, but no higher, rating for partial tear of the left hamstring muscle are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.27, 4.40, 4.45, 4.55, 4.56, 4.73, Diagnostic Code (DC) 5313 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159 (b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removed the third sentence of 38 C.F.R. § 3.159 (b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a July 2010 pre-rating letter, the AOJ provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service records, VA treatment records, private medical records and September 2010 and March 2016 VA examination reports. Also of record and considered in connection with the claim are the written statements from the Veteran and his representative. The Board finds that no further AOJ action on this claim, prior to appellate consideration, is required. Pursuant to the Board's November 2015 remand, the AOJ obtained and associated with the claims file outstanding VA treatment records from the Alexandria VA Medical Center (VAMC) and the Jennings Community Based Outpatient Clinic (CBOC) dated from April 2013 to July 2015. The Veteran was afforded a March 2016 VA muscle injury examination to determine the severity of his service-connected residuals of a partial tear of the left hamstring muscle. Thereafter, the AOJ issued a May 2016 supplemental SOC reflecting the continued denial of the claim. Under these circumstances, the Board finds that the AOJ has substantially complied with the prior remand directives with respect to the claim herein decided, to the extent possible, and that no further action in this regard is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following a grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A noncompensable rating for the Veteran's service-connected residuals of a partial tear of the left hamstring muscle has been assigned under Diagnostic Code (DC) 5313. 38 C.F.R. § 4.73, DC 5313. DC 5313 provides evaluations for a disability of Muscle Group XIII. The functions of these muscles are as follows: extension of hip and flexion of knee; outward and inward rotation of flexed knee; and acting with rectus femoris and sartorius (see XIV, 1, 2) synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over-pulley action at knee joint. The muscle group includes the posterior thigh group, hamstring complex of 2-joint muscles: (1) biceps femoris; (2) semimembranosus; and (3) semitendinosus. See Id. Under DC 5313, a slight injury warrants a 0 percent rating, a moderate injury warrants a 10 percent rating, a moderately severe injury warrants a 30 percent rating, and a severe injury warrants a 40 percent rating. Id. The factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55 and 4.56. A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56 (b). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56 (c). Under DCs 5301 to 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, and severe. The type of disability associated with a slight muscle disability is a simple wound of muscle without debridement or infection. A history with regard to this type of injury should include service department record of superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability. Objective findings should include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56 (d)(1). The type of injury associated with a moderate muscle disability is a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department record or other evidence of in-service treatment for the wound and record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56 (d)(2). The type of injury associated with a moderately severe muscle disability is a through-and-through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include service medical record or other evidence showing prolonged hospitalization for treatment of wound, record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56 (d)(3). The type of injury associated with a severe disability of muscles is a through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. A history consistent with this type of injury would include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound, record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings of a severe disability would include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, a severe injury would also show x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; or induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (d)(4). A muscle injury rating will not be combined with a peripheral nerve paralysis ratings of the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55 (a). For background purposes, the Veteran sustained a left hamstring injury during a physical training exercise in January 2010. He noticed discoloration and swelling around the posterior and distal portion of his left thigh and popliteal space. He sought medical attention. A magnetic resonance imaging (MRI) study showed a partial hamstring tear. July 2010 primary care records note the January 2010 physical training (PT) injury. Clinical examination was unremarkable. In September 2010, the Veteran was afforded a VA general examination; the examiner noted review of the claims file. The Veteran reported that he collided with another soldier while running and tore his hamstring muscle. He continued to have mild intermittent pain in his left leg. Clinical evaluation showed that the Veteran had a normal gait. Neurological examination was grossly normal. The examiner opined that the left hamstring muscle strain would not affect occupational or usual daily activities. VA treatment records dated in December 2011 include complaints about left leg pain and poor balance. He recounted the running injury and treatment. He complained about poor balance and near falls since the injury. He could not balance on his left leg. He described left leg throbbing pain with occasional sharp shooting pains into his low back with certain movements. He also had intermittent burning pain in his left leg. Clinical evaluation showed the Veteran to ambulate with a steady gait and pace without any assistive device. Muscle strength testing for left hip extension and hip flexion revealed slightly diminished (4/5) strength. Sensation for both legs was intact with monofilament testing. The clinician assessed chronic left leg pain from muscle strain/ sprain. In March 2016, the Veteran was afforded a VA muscle injury examination; the examiner noted review of the electronic claims file. The examiner listed a diagnosis of status post partial tear of the left hamstring muscle. The injury history was described as a non-penetrating muscle injury. The examiner referred to previous treatment records as the pertinent injury history. Currently, the Veteran complained about shooting pains from his foot to his thigh area from certain movements. He had left hamstring pain with prolonged weight-bearing, squatting and kneeling. The examiner assessed the current impairment as slight, citing an absence of muscle atrophy and scarring. She did not believe the injury had worsened since the September 2010 VA examination. Clinical evaluation revealed that there was no associated scar, fascial defect or muscle substance defect. However, the Veteran had a lowered threshold of fatigue and fatigue-pain for Muscle Group XIII. The frequency and severity of these symptoms was indicated as consistent. Muscle atrophy was not found. The Veteran did not require any assistive ambulatory devices. For functional impact, the examiner commented that the service-connected left hamstring injury would preclude employment in occupations requiring prolonged walking, squatting, kneeling and impact exercises. Sedentary employment was possible. After careful review of the record, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor, his left thigh muscle injury disability picture is most appropriately rated as 10 percent disabling as an overall moderate muscle injury pursuant to DC 5313. 38 C.F.R. §§ 4.3, 4.7, 4.56, 4.73, DC 5313. Under 38 C.F.R. § 4.56(d), the "slight" characterization contemplates that there is no evidence of any of the cardinal signs or symptoms of muscle disability. In this case, the Veteran has consistently reported pain, general weakness and fatigability of his left hamstring. See VA examinations from September 2010 and March 2016; VA treatment records from December 2011. The Board finds his reports competent and credible. Thus, the evidence is at least evenly balanced as to whether the Veteran's symptoms more nearly approximate moderate muscle injury under DC 5313, warranting a 10 percent rating. 38 C.F.R. § 4.56(c), (d)(2). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 10 percent rating for moderate muscle injury is granted. 38 C.F.R. §§ 4.3, 4.7, 4.56, 4.73, DC 5313. A rating in excess of 10 percent is not warranted under DC 5313. Id. Moderately severe muscle injury requires significant objective findings that are not present or more nearly approximated in this case. There is no indication of observable loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. 38 C.F.R. § 4.56(d)(3). Additionally, the Board finds that at no pertinent point has the Veteran's left hamstring muscle injury been shown to be so exceptional or so unusual a picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (b)(1). The threshold factor for extra-schedular consideration is a finding by VA that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); see also 38 C.F.R. § 3.321 (b)(1).. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the AOJ or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321 (b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that the schedular criteria are adequate to rate the Veteran's left hamstring muscle disability at all pertinent points. As discussed above, the Veteran's left hamstring muscle disability is manifested by pain, fatigue and weakness. In this regard, all of the Veteran's symptoms are contemplated by the rating criteria. The rating schedule provides for a higher rating based on evidence demonstrating more severe impairment. Notably, there is no evidence or allegation that the schedular criteria are inadequate to rate the disability. Furthermore, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extra-schedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). As such, further discussion of the holding in Johnson is unnecessary. As the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321 (b)(1) is not met, referral of any claim for extra-schedular consideration is not required. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final point, the Board notes that the matter of a veteran's entitlement to a total disability rating due to individual unemployability (TDIU) may be considered a component of a rating claim when such is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has been a full time student or employed during the course of the appeal. See September 2010 and March 2016 VA examination reports. As such, there is no evidence or argument that the service connected thigh disability has, alone (or, in combination with the right shoulder disability being remanded) has/have actually or effectively rendered him unemployable. Under these circumstances, the Board finds that a claim for a TDIU due to service connected disability has not been raised in conjunction with the current claim for a higher rating, and need not be addressed herein. For all the forgoing reasons, the Board finds that an initial 10 percent, but no higher, rating for residual left hamstring muscle injury disability is warranted. While the Board has resolved reasonable doubt in the Veteran's favor in awarding an initial 10 percent rating for this disability, the Board also finds that the preponderance of the evidence is against the assignment of any higher rating at any pertinent point. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial 10 percent rating for residuals of a partial tear of the left hamstring muscle is granted, subject to the legal authority governing the payment of compensation. REMAND Although the Board regrets the additional delay, a review of the claims file reveals that further AOJ action on the remaining claim on appeal is warranted. The Veteran has been provided two VA examinations for his right shoulder disability. Recently, however, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (as appropriate). and, if possible, with range of motion measurements of the opposite undamaged joint. However, as the Board cannot discern from of the right shoulder examination reports whether he type of joint testing addressed in section 3.159 and Correa was not accomplished, and there is otherwise no such testing results of record, the medical evidence of record is insufficient for evaluation of this disability. Hence, remand of this claim to afford the Veteran an additional VA right shoulder examination is warranted. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claim for higher rating. See 38 C.F.R. § 3.655 (2016). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and the record is complete, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1) (West 2014); but see also 38 U.S.C.A. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2016). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. Adjudication of the claim should include consideration of whether "staged rating" of the disability-assignment of different ratings for distinct periods of time, based on the facts found-is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records-to particularly include any records of treatment for right shoulder disability. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, obtain all identified evidence following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate medical professional, for evaluation of his right shoulder disability. The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings responsive to applicable rating criteria should be reported in detail. The examiner should conduct range of motion testing of the right shoulder (expressed in degrees) in active motion and passive motion, and on weight-bearing, and non-weight-bearing (as appropriate). Range of motion testing of the left shoulder should also be conducted, for comparison purposes. 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 so state, and explain why. In conducting range of motion testing of the right shoulder, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which motion limiting pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right shoulder due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also specifically indicate whether there is any ankylosis in the right shoulder. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal, in light of all pertinent evidence (to particularly include all evidence added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority (to include consideration of whether staged rating of the disability is appropriate). 7. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. 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 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs