Citation Nr: 1802716 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-25 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for coronary artery disease. 2. Entitlement to an increased initial rating for osteoarthritis of the right shoulder, rated as 20 percent disabling prior to February 27, 2017, and 30 percent thereafter. 3. Entitlement to an increased initial rating for osteoarthritis of the cervical spine, rated as 10 percent disabling prior to November 29, 2007, and 30 percent thereafter. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 1, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Anderson, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to March 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were previously before the Board in January 2015 and March 2016, when they were remanded for additional development. During the pendency of the remand, a May 2017 rating decision granted service connection for an unspecified anxiety reaction. As the May 2017 rating decision constitutes a grant of the claim for service connection on appeal, that issue is no longer before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board regrets the additional delay, but finds that further development is necessary prior to appellate review. There are outstanding VA treatment records. A February 4, 2013 VA treatment record indicates that the Veteran had a primary care appointment scheduled on April 29, 2013. Additionally, the February 2017 VA shoulder and arm conditions disability benefits questionnaire referenced a May 2016 orthopedic consultation report and noted that the Veteran's most recent cortisone injection was in November 2016. To date, VA treatment records subsequent to February 13, 2013 have not been associated with the claims file. As the outstanding treatment records are in VA's constructive possession and may be material to the claims, a remand is required to associate them with the claims file. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (stating VA medical records are in constructive possession of the agency and must be obtained if pertinent). There also appear to be outstanding non-VA records that may be relevant to the Veteran's service connection claim. A June 30, 2000 VA treatment record indicates that the Veteran was seen by a private physician under a Workman's Compensation claim. While the treatment record does not detail the nature of the Workman's Compensation claim, it indicates that the private physician had treated him for cardiac issues including blood pressure. Accordingly, on remand reasonable efforts must be made to obtain any pertinent Workers' Compensation records. The Veteran was provided a VA examination to assess his right shoulder disability in February 2017. While the examiner indicated that rotator cuff testing could not be performed, she did not indicate why such testing was unable to be performed. Accordingly, on remand another VA shoulder examination is warranted. The Veteran was provided a VA examination to address his coronary artery disease in February 2017. The examiner opined that it was less likely than not that the Veteran's current coronary artery disease was incurred in or otherwise related to his single instance of in-service chest pain in November 1977. In so opining, the examiner did not acknowledge or address the other documented reports of chest pain on July 19, 1973, October 2, 1973, October 15, 1973, and November 4, 1974. In light of the above, the Board finds that an addendum opinion is warranted. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records dating since February 13, 2013 and associate them with the claims file. If requested records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 2. Ask the Veteran to provide the names and addresses of any non-VA medical care providers who have treated him for his disabilities on appeal, to include Dr. Stewart and Dr. Ylescupidez. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 3. After receiving any necessary contact information and authorization from the Veteran, request copies of the Veteran's Workman's Compensation records. If the requested records are not available, the Veteran should be notified of such. 4. Schedule the Veteran for a VA shoulder examination to determine the current severity of his service-connected right shoulder disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion should be tested actively and passively and after repetitive use. The examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups. The examiner should describe the additional loss, in degrees, if possible. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. 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. 5. Return the claims file to the February 2017 heart conditions examiner, to obtain addendum opinion regarding the Veteran's coronary artery disease. If a new examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's coronary artery disease had its onset during or is otherwise related to service. Please explain why or why not. In so opining, the clinician should address the Veteran's treatment for chest pain on July 19, 1973, October 2, 1973, October 15, 1973, November 4, 1974, and November 1, 1977. 6. Readjudicate the claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an appropriate period for response. Thereafter, return the appeal to the Board as warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (2012). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).