Citation Nr: 18152235 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-02 766 DATE: November 21, 2018 REMANDED The claim of entitlement to a compensable initial disability rating for left shoulder, status post rotator cuff repair, is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from November 1993 to August 1997, with subsequent service in the National Guard and Reserves, including periods of active duty for training (ACDUTRA). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that additional VA treatment records were associated with the claims file after the issuance of the November 2014 statement of the case (SOC). As the Agency of Original Jurisdiction (AOJ) will have an opportunity to review all of the new evidence on remand, no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. See 38 C.F.R. §§ 20.800, 20.1304. The Board further notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In this case, recent VA treatment records indicate that the Veteran is currently employed, and there is no evidence that employment is not substantially gainful. See July 2016 VA treatment record. As such, entitlement to a TDIU has not been raised. As a final matter, the Board notes that in a November 2018 informal hearing presentation, the Veteran’s representative made reference to a disability of arthritis of the left shoulder, secondary to the service-connected left shoulder disability, which is not a claim currently before the Board. The Board notes that in a February 2014 rating decision, the RO previously denied entitlement to service connection for left shoulder degenerative arthritis. As the Veteran did not appeal this decision, it became final. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the RO. The Veteran is advised that if he wishes to re-open his claim for left shoulder arthritis, he may do so using the prescribed form either in person or online (https://www.ebenefits.va.gov/ebenefits/). REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The record reflects that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected left shoulder disability in November 2014. However, there are internal inconsistencies within the November 2014 VA examination report. While the examiner noted that, on examination, the Veteran demonstrated a very limited left shoulder range of motion with forward flexion and abduction, she concluded that the Veteran had full range of motion of the left shoulder. The examiner based her opinion on the fact that previous medical records, including the October 2012 VA examination report, show that the Veteran demonstrated full range of motion of the left shoulder. Furthermore, the examiner noted that a previous medical record dated April 2013 showed that the Veteran continued to have full range of motion of his left shoulder at that time. The Board finds that while previous medical records, as cited by the November 2014 VA examiner, show that the Veteran had full range of motion of his left shoulder, it is possible that the level of severity of his left shoulder condition could have worsened since that time, resulting in decreased range of motion. Thus, the Board finds that the November 2014 VA opinion has limited probative value. Therefore, due to the inconsistencies within the most recent VA examination report and the length of time since the last examination, the Board finds that a contemporaneous examination is warranted to reconcile the prior inconsistencies and to ensure that the record reflects the current severity of the Veteran’s left shoulder disability. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The Board notes that the most recent VA records associated with the claims file are dated July 2016. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician (different from the examiner who conducted the November 2014 examination) to determine the severity of his left shoulder disability. The examiner must test and record the range of motion for both shoulders in active motion, passive motion, weight-bearing, and non-weight-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. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which such pain begins. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left shoulder disability alone and discuss the effect of the Veteran’s left shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issue on appeal, the SSOC should consider any new evidence received since the SOC issued in November 2014. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel