Citation Nr: 1806504 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-10 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased initial evaluation for right shoulder impingement syndrome in excess of 10 percent prior to June 29, 2011 and to an increased evaluation in excess of 10 percent subsequent to January 1, 2012. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1985 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. With respect to a total disability rating based on individual unemployability (TDIU), the Veteran has appealed for a higher schedular rating for his right shoulder impingement syndrome and he has alleged marked interference with his employment due to this condition. Thus, a new claim for TDIU exists. Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted). The Board has therefore added a TDIU claim to the title page to reflect the Board's jurisdiction over this matter. Further development is needed to properly adjudicate the TDIU claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant and his representative if further action is required on his part. REMAND Although the Board regrets the additional delay, 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 claims so that he is afforded every possible consideration. The Veteran is seeking an increased initial rating in excess of 10 percent for his service-connected right shoulder disability prior to June 29, 2011 and an increased evaluation in excess of 10 percent subsequent to January 1, 2012. The Board notes that the Veteran was last afforded a VA examination in December 2013. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Additionally, in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) the United States Court of Appeals for Veterans Claims (Court) held that adequate examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board finds that the December 2013 VA contract examination is inadequate because it does not include complete findings as to the Veteran's functional impairment due to pain on active and passive motion, and during weight-bearing and nonweight-bearing. Furthermore, recent Court precedent, citing to a VA clinician's guide, appears to require in cases such as this, that when evaluating impairment from a given disability, the VA examiner is to estimate additional range of motion loss during flare-ups after eliciting appropriate information from the Veteran, and considering all the information of record, or explain why he or she could not do so. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the Veteran should be afforded a contemporaneous VA examination which includes such findings and properly assesses the current level of the Veteran's service-connected right shoulder disability. At the December 2013 VA contract shoulder examination, the Veteran reported that his ability to work is impacted by his service-connected shoulder/arm condition as he is unable to reach overhead and lift. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to TDIU in this circumstance when the issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability or disabilities in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). Therefore, the Board finds it necessary to remand the issue of entitlement to a TDIU for initial development and consideration, to include sending appropriate notice to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an application for a TDIU (VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability)) and an appropriate VCAA notification letter. Conduct any development needed to adjudicate the issue of entitlement to a TDIU. 2. Obtain any outstanding VA Medical treatment records and associate them with the electronic file. All record/responses received should be associated with the electronic file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 3. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his right shoulder disability. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 3. Schedule the Veteran for a VA shoulder/arm examination. The Veteran's electronic file should be made available to the examiner for review. Any indicated diagnostic tests and studies should be performed and the results should be reported in detail. The examiner should clearly list all current disabilities of the right shoulder diagnosed on examination. The examiner should determine the range of motion of the Veteran's right shoulder, in degrees. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, incoordination or flare-up should be indicated. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that (s)he cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 4. After all of the above actions are completed, accomplish any other development deemed appropriate in order to adjudicate the issue of entitlement to a TDIU. 5. Then, readjudicate the appeal. If the benefits sought are not granted in full, furnish the Veteran and his representative a Supplemental Statement of the Case and, after allowing the appropriate period of time for response, return the case to the Board. The appellant and his representative have the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).