Citation Nr: 1804473 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-09 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased disability rating for right shoulder tendinopathy (non-dominant) in excess of 10 percent. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from June 1998 to April 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In addition to the issue listed above, the July 2010 rating decision denied entitlement to service connection for right arm neuropathy. The Veteran submitted a timely notice of disagreement for both issues in March 2011. The RO later granted entitlement to service connection for right arm neuropathy in an October 2013 rating decision. The grant of service connection for this disability constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that issue is not before the Board. Regarding the Veteran's increased rating claim for her right shoulder tendinopathy, the Veteran was furnished with a statement of the case in March 2014, and she submitted a timely VA Form 9 that same month. In September 2015, VA received a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, that listed a service connection claim for migraines and an increased rating claim for right shoulder tendinopathy. Despite the fact that the Veteran's increased rating claim for this disability was already on appeal, the RO erroneously addressed the issue alongside her service connection claim for migraines in a November 2015 rating decision. More appropriately, the issue was later readjudicated in a July 2016 supplemental statement of the case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's right shoulder disability was last evaluated during a September 2015 VA examination. However, the examiner did not test for pain in passive motion. 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. Correia v. McDonald, 23 Vet. App. 158, 168-69 (2016). The Board therefore finds that a remand is needed to obtain an adequate VA examination to evaluate the Veteran's right shoulder tendinopathy under the appropriate rating criteria. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her right shoulder disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the VA Illiana Health Care System dated since January 2015. 2. After completing the development in paragraph 1, provide the Veteran with a VA examination to ascertain the current severity and manifestations of her right shoulder tendinopathy. The claims file must be made available to the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-bearing. This testing must be conducted for both the joint in question and any paired joint. 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 this is so. He or she should also state whether there is any ankylosis, impairment of the humerus, or impairment of the clavicle or scapula; and if so, provide the findings necessary under the rating criteria for such manifestations. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss 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. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask her to describe the additional functional loss, if any, she suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. The examiner must also report any neurological findings due to the Veteran's service-connected right shoulder disability. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 (2012). _________________________________________________ GAYLE E. STROMMEN 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).