Citation Nr: 1806485	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-32 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Jackson, Mississippi


THE ISSUES

1.  Whether new and material evidence to reopen a claim for service connection for lumbar disc disease has been received.

2.  Entitlement to service connection for lumbar disc disease.  

3.  Entitlement to a rating in excess of 10 percent for traumatic arthritis of the left hip, limitation of extension.

4.  Entitlement to an increased (compensable) rating for traumatic arthritis of the left hip, limitation of flexion.

5.  Entitlement to a rating in excess of 20 percent for traumatic arthritis of the left hip, impairment of the thigh.

6.  Entitlement to a rating in excess of 20 percent for acromioclavicular arthrosis and supra intraspinatus tendinosis of the left shoulder, status post recurrent left shoulder subluxation.

7.  Entitlement to a rating in excess of 20 percent for recurrent dislocation of the left shoulder.

8.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected left hip and left shoulder disabilities, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b).


REPRESENTATION

Appellant represented by:	Mississippi State Veterans Affairs Board


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Rothstein, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1972 to May 1974.

This appeal to the Board of Veterans' Appeals (Board) arose from an April 2012 rating decision, in which the RO denied the Veteran's request to reopen a claim for service connection for lumbar disc disease; denied the Veteran's claim for an increased rating for his service-connected acromioclavicular arthrosis and supra intraspinatus tendinosis of the left shoulder, status post recurrent left shoulder subluxation; recharacterized the Veteran's increased rating claim for his service-connected traumatic arthritis of the left hip as traumatic arthritis of the left hip, limitation of extension, and denied the claim; awarded an additional, separate noncompensable (zero percent) rating for traumatic arthritis of the left hip, limitation of flexion; and awarded an additional, separate 20 percent rating for traumatic arthritis of the left hip, impairment of the thigh (limitation of abduction, adduction, rotation).  In June 2012, the Veteran filed a notice of disagreement (NOD) with these denials and the assigned ratings for traumatic arthritis of the left hip, limitation of flexion and for traumatic arthritis of the left hip, impairment of the thigh.  A statement of the case (SOC) was issued in October 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2013.

In an August 2016 rating decision, the RO awarded an additional, separate 20 percent rating for recurrent dislocation of the left shoulder.  Although the Veteran did not initiate an appeal as to this particular rating, because the award of this rating arose from the increased rating issue of the left shoulder already on appeal and was accordingly then considered as part of such appeal by the RO (as indicated in concurrent and subsequent supplemental SOCs (SSOCs) mentioned below), the Board has characterized the appeal as to the matter of the left shoulder to also include the rating assigned for recurrent dislocation of the left shoulder, as reflected on the title page.  Additionally, in an August 2016 SSOC, the RO continued to deny the request to reopen and the claims for higher ratings on appeal.  

In a February 2017 SSOC, despite denying a claim for a TDIU in a January 2017 rating decision, the RO expanded the appeal to also encompass the matter of entitlement to a TDIU due to the disabilities for which higher ratings were being sought (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)).  In that SSOC, the RO also denied the new TDIU claim and continued to deny the request to reopen and the claims for higher ratings also on appeal.  The Board notes that because the ratings currently assigned for the Veteran's left hip and left shoulder do not meet the percentage requirements of 38 C.F.R. § 4.16(a) for award of a schedular TDIU, the Board has characterized this matter to include extra-schedular consideration, pursuant to 38 C.F.R. § 4.16(b), as reflected on the title page.

In March 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge at the RO.  A transcript of that hearing has been associated with the claims file.  

With respect to matter of service connection for  lumbar disc disease, the Board notes that regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen the previously denied claim for service connection.  That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  As the Board must first decide whether new and material evidence to reopen the claim has been received-and, given the favorable disposition of the request to reopen-the Board has characterized that portion of the appeal involving lumbar disc disease as  encompassing both matters listed as items 1 and 2 on the title page.

While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems.  

The Board's decision reopening the claim for service connection for lumbar disc disease is set forth below.  The de novo claim for service connection for lumbar disc disease, along with the claims for increased ratings for the Veteran's service-connected left hip and left shoulder disabilities, and the claim for a TDIU, are addressed in the remand following the order; these matters are 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 matter herein decided have been accomplished.

2.  In an August 2010 rating decision, the RO denied service connection for lumbar disc disease; a timely NOD was filed later that month, and the RO issued an SOC in October 2011; however, the Veteran did not perfect his appeal with a timely-filed substantive appeal.  

3.  Additional evidence associated with the claims file since the August 2010 rating decision (and the October 2011 SOC issued in furtherance of the Veteran's unperfected appeal of that decision) relates to an unestablished fact necessary to substantiate the claim for service connection for lumbar disc disease and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The August 2010 rating decision in which the RO denied service connection for lumbar disc disease is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 19.32, 20.200, 20.302, 20.1103 (2017).

2.  As additional evidence received since the August 2010 rating decision (and the October 2011 SOC issued in furtherance of the Veteran's unperfected appeal of that decision) is new and material, the criteria for reopening the claim for service connection for lumbar disc disease are met.  38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

At the outset, the Board notes that 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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) 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) (2017).

Given the favorable disposition of the request to reopen the previously denied claim for service connection for lumbar disc disease, the Board finds that all notification and development actions needed to fairly adjudicate this matter have been accomplished.

Under legal authority in effect at the time of the prior denial and currently, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  See 38 U.S.C. § 1110 (2002 - 2012); 38 C.F.R. § 3.303 (2009 - 2017).  Also, service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2009 - 2017).

The Veteran's initial claim for service connection for lumbar disc disease was denied in an August 2010 rating decision by the RO.  The pertinent evidence then of record consisted of the Veteran's STRs, VA treatment records, an August 2009 VA spine examination report, a January 2010 VA opinion, and his lay statements.  The RO denied the claim on the basis that s no relationship between current disability and service was shown.  

The Veteran was notified of this denial in an August 2010 letter, and he filed a timely NOD with the denial later that month.  In October 2011, the RO issued an SOC that reflected consideration of all new argument and evidence associated with the claims file-namely, additional VA treatment records and lay statements from the Veteran.  However, neither the Veteran or his representative perfected the appeal with a timely-filed substantive appeal.  See 38 U.S.C. § 7105(a) and 38 C.F.R. § 20.200 (appellate review is initiated by an NOD and completed by a substantive appeal filed after an SOC has been furnished to an appellant).   Notably, a substantive appeal must be filed within 60 days from the date of mailing of an SOC, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.  38 U.S.C. § 7105(b)(2); 38 C.F.R. § 20.302(b).  In the absence of a properly perfected appeal, the RO may close the appeal and the decision becomes final.  38 U.S.C. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32.  

In this case, as neither the Veteran nor his representative filed any document that could be construed as a timely substantive appeal pertaining to the claim for service connection for lumbar disc disease within 60 days following the issuance of the October 2011 SOC, the RO appropriately closed the appeal.  

Therefore, the RO's August 2010 denial of the claim is final as to the evidence then of record (and at the time of the October 2011 SOC issued in furtherance of the unperfected appeal of that denial), and is not subject to revision on the same factual basis.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

In this case, the Veteran filed his claim to reopen his previously denied claim for service connection for lumbar disc disease in January 2012.  Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.

The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).

Pertinent evidence added to the claims file since the August 2010 rating decision (and the October 2011 SOC issued in furtherance of the Veteran's unperfected appeal of that decision) includes VA treatment records, SSA disability records, lay statements from the Veteran, and a transcript of the March 2017 Board hearing.  In particular, during the March 2017 Board hearing, in support of his assertion that his current lumbar disc disease was related to an in-service fall in the shower, the Veteran testified that he had experienced continuous back symptoms since that in-service fall.  In addition, the SSA disability and VA treatment records note a reported history of continued, chronic back pain since service.  

The Board finds that the above-described evidence, when considered in light of the evidence previously of record, provides a basis for reopening the previously denied claim.  This evidence is "new" in that it was not before the RO at the time of the August 2010 rating decision and the October 2011 SOC and is not duplicative or cumulative of the evidence previously of record.  Moreover, this evidence, while certainly not in any way dispositive, is "material" in that it relates to an unestablished fact necessary to substantiate the claim for service connection-namely, whether there is a relationship between the Veteran's current lumbar disc disease and service.  Moreover, when presumed credible and considered in light of Shade, 24 Vet. App. at 117-18, this evidence provides a reasonable possibility of substantiating the claim.

Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for lumbar disc disease are met.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156.


ORDER

As new and material evidence to reopen the claim for service connection for lumbar disc disease has been received, to this extent only, the appeal is granted.


REMAND

The Board's review of the claims file reveals that further AOJ action on the reopened claim, on the merits, as well as the other remaining claims on appeal are warranted.  

With regard to the reopened claim for service connection for lumbar disc disease, at the outset, the Board notes that it has reopened the claim for service connection for lumbar disc disease, whereas the RO declined to reopen the claim.  As the RO has not considered the claim for service connection, on the merits, remand of this matter to the AOJ for initial consideration is required to avoid any prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet App. 384, 394 (1993).  The Board also finds that, prior to such consideration, additional development of evidence pertinent to the service connection claim is warranted.

As noted above, the Veteran contends that his current lumbar disc disease is related to an in-service fall in the shower.  He also contends that he has had continuous back symptoms ever since that in-service fall.  A June 2015 VA primary care treatment note shows a diagnosis of degenerative disc disease of the lumbar spine, and February and March 1974 service treatment records note that the Veteran fell in the shower and had small abrasions and tenderness in the lower back, as well as complaints of back pain.  

In connection with his initial claim for service connection for lumbar disc disease, the Veteran was afforded a VA spine examination in August 2009 and a VA medical opinion was provided in January 2010.  The VA examiner diagnosed the Veteran with mild lumbar disc disease.  He also opined that the Veteran's current lumbar disc disease was not due to or related to service.  He reasoned that, "in view of the small number of references to this in the Veteran's service medical record, it is difficult for me to believe that he would work as a truck driver for many years with a painful condition that stemmed from his 1972-1974 military service in so far as the spine is concerned."  He also noted that the Veteran had an occasional mention of back pain, which had been treated from time to time in his VA treatment records, but further reasoned that "[t]o say that it would be related would be conjecture, and the evidence favors that it is not."

However, since that opinion was provided, additional evidence has been added to the record which should be considered in the formulation of a medical etiology opinion-to include the Veteran's testimony as to experiencing continuous back symptoms since service, and medical records documenting reports of recurrent, chronic back pain.  Accordingly, the Board finds that further VA examination and opinion addressing the medical nexus, if any, between current lumbar disc disease and service-based on full consideration of the Veteran's documented medical history and lay assertions, and supported by complete, clearly stated rationale-is needed to resolve the claim for service connection for lumbar disc disease.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

With regard to the claims for increased ratings for the left hip and left shoulder, the Veteran was last afforded VA contracted examinations for evaluation of his service-connected left hip and left shoulder disabilities in October 2016.  However, in a March 2017 statement (VA Form 646), the Veteran's representative expressed the  Veteran's contention that his service-connected left hip and left shoulder disabilities have progressively worsened, and that he had experienced an increase in symptomatology since his last VA examination.  Given the possible worsening of the Veteran's service-connected left hip and left shoulder disabilities, the Board finds that he should be afforded a new VA examination to obtain information as to the current severity of the disabilities.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

The Board also notes that, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (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, and, if possible, with range of motion measurements of the opposite undamaged joint.  Such testing must be accomplished  in conjunction with the examination herein requested.  

The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may well result in denial of his reopened and/or increased rating claims.  See 38 C.F.R. § 3.655(b) (2017).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to any scheduled examination(s), the AOJ should obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent medical facility.

As for the TDIU claim, the Board notes that, inasmuch as resolution of the increased rating claims may well have a bearing on the claim for a TDIU, the claims are inextricably intertwined and should be considered together.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue).  As Board action on the claim for a TDIU would be premature, at this juncture, this matter is being remanded, as well.

Prior to arranging for the Veteran to undergo further examinations, to ensure that all due process requirements are met, and that the record with respect to all remaining reclaims on appeal is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.

As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Jackson, Mississippi, and that records from those facilities dated through December 2016 are associated with the file; however, more recent records may exist.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Therefore, the AOJ should obtain from the Jackson VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran since December 2016, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities.

The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal, explaining that he has a full one-year period to respond.  See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).  In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records and/or employment records..

Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159.

The actions identified herein are consistent with the duties imposed by the VCAA.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  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 prior to adjudicating the remaining claims on appeal.  The AOJ's adjudication of each higher rating 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, these matters are hereby REMANDED for the following action:

1.  Obtain from the Jackson VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since December 2016.  Follow the procedures of 38 C.F.R. § 3.159 as regards to requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.

2.  Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims 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) records and/or employment records.

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).

3.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/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.

4.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA spine examination, by an appropriate physician, in connection with his service connection claim for lumbar disc disease.

The contents of the entire, electronic claims file, (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran's documented medical history and assertions.  

All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

With respect to diagnosed lumbar disc disease, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in or is otherwise medically-related to service-specifically, the in-service fall in the shower.

In rendering the requested opinion, the examiner must consider and discuss all relevant medical and other objective evidence, as well as all lay assertions-to include the Veteran's competent assertions as to the nature, onset and continuity of symptoms.

Notably, the absence of documented evidence of diagnosis of or treatment for a specific disability in or shortly after service should not, alone, serve as the sole basis for a negative opinion.  In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating the requested opinion.  If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why.

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

5.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination,by an appropriate medical professional, for evaluation of his service-connected left hip and left shoulder disabilities,.

The contents of the entire, electronic claims file, (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report(s) should reflect consideration of the Veteran's documented medical history and assertions. 

All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

Left hip examination - With respect to the left hip, the examiner should conduct range of motion testing (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing (as appropriate).  Range of motion testing of the right hip should also be accomplished (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.

On range of motion testing, 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 associated with the left hip.  If pain on motion is observed, the examiner should indicate the point at which pain begins.

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 likely functional loss of the left hip 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 indicate whether the Veteran has any ankylosis of the left hip, and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable, intermediate or unfavorable.

Further, regarding the left hip, the examiner should identify and comment on the existence or extent of, as appropriate, any flail joint or femur impairment.

Left shoulder examination - For the left shoulder, the examiner should conduct range of motion testing (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing (as appropriate).  Range of motion testing of the right shoulder should also be accomplished (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.

On range of motion testing, 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 associated with the left shoulder.  If pain on motion is observed, the examiner should indicate the point at which pain begins.

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 likely functional loss of the left 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 indicate whether the Veteran has any ankylosis of the left shoulder, and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable, intermediate or unfavorable.

Further, regarding the left shoulder, the examiner should indicate whether the Veteran has recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements; or recurrent dislocation of the scapulohumeral joint with infrequent episodes, and guarding of movement only at shoulder level.  The examiner should also identify and comment on the existence of, as appropriate, any other humerus impairment. 

6.  If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent medical facility.

7.  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, 271 (1998).

8.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal.

If the Veteran fails, without good cause, to report to the scheduled examination(s), in adjudicating the reopened and/or increased rating claim(s), apply the provisions of 38 C.F.R. § 3.655(b), as appropriate.

Otherwise, adjudicate each claim in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority (to include, with respect to each higher rating claim, consideration of whether any, or any further, staged rating of the disability(ies) are appropriate).

9.  If any benefit(s) sought on appeal remain(s)s denied, furnish to the Veteran and his representative a supplemental SOC 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 any 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. §§ 5109B, 7112 (2012).




______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs