Citation Nr: 1804570 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 16-19 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a left shoulder disability post arthroscopic repair of the Veteran's left superior labrum. ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran had active service for two periods, from October 2000 to March 2001 and again from December 2005 to November 2006. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. When the Veteran filed his substantive appeal, the Veteran indicated that he did not wish to have a hearing 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 Veteran had a surgical procedure on his left shoulder to remove a paralabral cyst in June 2006 while on active duty. In August 2012, the Veteran claimed service connection for nerve damage in his back and shoulder resulting from that surgical procedure. The Veteran indicated symptoms including pain, numbness, and weakness in his left arm, hand, and the left side of his body. Based on the results of VA musculoskeletal examinations in August 2013 and February 2016, the Veteran's left shoulder is service-connected based on painful motion pursuant to 38 C.F.R. § 4.59 (2017). In substance, the Veteran's position on appeal is that he should have a higher or additional disability rating based on the numbness, pain, weakness, and tingling that he characterizes as nerve damage. In an attempt to develop evidence relevant to this disability, the Veteran received a VA peripheral nerve examination in February 2016. However, that examination produced no medical evidence of numbness in his neck or left arm and no relevant diagnosis. Subsequent to that examination and the filing of his substantive appeal, the Veteran submitted additional medical evidence including reports of a nerve conduction study, an electromyogram (EMG), and MRIs of his neck and left shoulder. Those reports provide evidence of several potentially relevant conditions including, among others, a small cyst on his humerus, evidence of mononeuropathy in his shoulder, and moderate tendinopathy. Unfortunately, these reports, while partially substantiating the Veteran's claim do not provide clear diagnoses or a determination whether the conditions discovered are part of the Veteran's service-connected left shoulder disability. Consequently, it is necessary to remand this case for further development before rendering a decision. Additionally, ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran and any records of continuing treatment the Veteran has received from a VA Medical Center (VAMC) to include the Jesse Brown (VAMC) since February 2016. 2. Schedule the Veteran for an appropriate VA examination or examinations to evaluate the nature, etiology, and severity of the conditions affecting the Veteran's neck and left shoulder, to include whether those conditions relate to his musculosketal system or peripheral nerves. The examiner is requested to pay particular attention to the conditions indicated in the EMG, MRIs, and nerve conduction studies performed in April and July 2016 at the Jesse Brown VAMC. All indicated testing should be performed, and the results of those tests should be clearly described in the examiner's report. In particular, the examiner should address the following: (a) Does the Veteran have a diagnosable musculoskeletal disability (or disabilities) in his neck or left shoulder? (b) For each and every musculoskeletal disability identified, please state whether the disability is at least as likely as not (50 percent or greater probability) caused or aggravated beyond its normal progression by the Veteran's service. In particular, please state whether it is at least as likely as not (50 percent or greater probability) that the disability is caused or aggravated beyond its normal progression by the Veteran's surgical procedure on his left shoulder during his service in June 2006. Please provide a rationale supporting each opinion. (c) Does the Veteran have a diagnosable disability (or disabilities) of his peripheral nerves in his neck or left shoulder? (d) For each and every peripheral nerve disability identified, please state whether the disability is at least as likely as not (50 percent or greater probability) caused or aggravated beyond its normal progression by the Veteran's service. In particular, please state whether it is at least as likely as not (50 percent or greater probability) that the disability is caused or aggravated beyond its normal progression by the Veteran's surgical procedure on his left shoulder during his service in June 2006. Please provide a rationale supporting each opinion. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is complete. Undertake any additional development indicated as a result of any of the development requested above, and re-adjudicate the Veteran's claim. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case, afford the Veteran and his representative the opportunity to respond, and return the case to the Board 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 (2012). _________________________________________________ A. ISHIZAWAR 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).