Citation Nr: 1806938 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-02 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to a rating in excess of 10 percent for a right clavicle disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel INTRODUCTION The Veteran had active military service from December 1969 to September 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from May 2010 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2016. A transcript of that hearing has been associated with the claims file. REMAND The Board finds that additional development is required before the claims on appeal are decided. With regard to the Veteran's claim for entitlement to service connection for a right shoulder disability, a review of the record reveals that in August 2011 the Veteran was afforded a VA examination. At that time, the Veteran reported that he injured his right shoulder while in service. The examiner diagnosed a right clavicle injury and opined that the Veteran's right shoulder disability was less likely than not related to the Veteran's active service. However, the examiner did not opine as to whether the Veteran's right shoulder disability was caused or aggravated by his service-connected right clavicle disability. The Board finds that the August 2011 VA examination is incomplete. In this regard, the examiner addressed the relationship between the Veteran's right shoulder disability and his active service. However, the examiner failed to opine as to whether the Veteran's right shoulder disability was caused or aggravated by his service-connected right clavicle disability. As the opinion is incomplete, it is inadequate to serve as the basis of a denial of entitlement to service connection. In light of the incomplete August 2011 VA examination, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present right shoulder disabilities. With regard to the Veteran's claim for entitlement to service connection for a back disability, a review of the record reveals that in February 2010 the Veteran was afforded a VA examination of his back disability. At that time, the Veteran reported that he injured his back in a 1972 motor vehicle accident while in service. The examiner diagnosed the Veteran with thoracic degenerative disc disease and lumbar disc disease. The examiner opined that the Veteran's thoracic disc disease and lumbar sprain with laminectomy were less likely than not related to his military service. The Board finds that the February 2010 VA examination is inadequate to serve as a basis for a denial of entitlement to service connection for a back disability. In this regard, the examiner acknowledged that the Veteran was diagnosed with a back strain while in service. However, the examiner failed to opine as to the relationship between the Veteran's back disability and his in service back injuries. Moreover, in December 2016, the Veteran competently and credibly testified that he continuously self-treated his back disability after his separation from service. In light of the incomplete February 2010 VA examination and the Veteran's December 2016 testimony, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present back disabilities. With regard to the Veteran's claim for a rating in excess of 10 percent for a right clavicle disability, a review of the record shows that the Veteran was last afforded a VA examination of his right shoulder in August 2011. The Board notes that VA examinations for musculoskeletal disabilities must 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, 28 Vet. App. 158 (2016); 38 C.F.R. §4.59 (2017). The Board has reviewed the August 2011 VA examination report and concludes that the findings do not meet the requirements of 38 C.F.R. §4.59 pursuant to Correia. Specifically, the examination of the right shoulder does not reflect joint testing for pain on passive motion, in weight bearing, or in nonweight-bearing. Therefore, the Board finds that further examination is necessary. With regard to the Veteran's claim for TDIU, the Board notes at the outset that the Veteran did not specifically file a claim of entitlement to TDIU. However, the Veteran has indicated that his various disabilities impact his ability to work. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating is inferred in a claim for increase where the Veteran claims his disability affects his employability or such a claim is reasonably raised by the record. The Board finds that a claim of entitlement to TDIU has been properly raised by the Veteran's testimony in his December 2016 hearing before the Board. Accordingly, the VA must provide the Veteran with appropriate notice as to how to substantiate his TDIU claim and consider whether the Veteran is entitled to TDIU. Additionally, current treatment records should be identified and obtained before a decision is rendered in this case. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record in the claims file. If possible, the Veteran should get these records himself to expedite the case. 2. Then, properly complete development of the Veteran's TDIU claim, to include providing the Veteran with VCAA notice, obtaining any VA examinations and obtaining a VA Form 21-8940 as appropriate. Any attempts to verify the Veteran's employment status should be documented in the claims file. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present right shoulder disabilities. The claims file must be made available to, and reviewed in its entirety by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is as likely as not (a 50 percent probability or greater) that any currently present right shoulder disability is etiologically related to the Veteran's active service. The examiner should also provide an opinion as to whether it is as likely as not (a 50 percent probability or greater) that any currently present right shoulder disability is caused or aggravated by the Veteran's service-connected right clavicle disability. The rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present back disabilities. The claims file must be made available to, and reviewed in its entirety by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is as likely as not (a 50 percent probability or greater) that any currently present back disability is etiologically related to the Veteran's active service, to include the back strain diagnosed while in service. In forming the opinion, the examiner should address the Veteran's December 2016 testimony regarding his continuous self-treatment of his back disability following separation from service. The rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected right clavicle disability. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight-bearing, and non weight-bearing, for both the joint in question and the paired joint. If the examiner is unable to conduct the required testing or concludes that required testing is not necessary in this case, the examiner should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, or incoordination. The examiner must also provide an opinion as to whether the Veteran is unable to obtain or retain employment consistent with his education and occupational experience due to his service-connected right clavicle disability, irrespective of age and any non service-connected disabilities. The rationale for all opinions expressed must be provided. 6. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected TBI. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must elicit from the Veteran and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment consistent with his education and occupational experience due to his service-connected TBI, irrespective of age and any non service-connected disabilities. The rationale for all opinions expressed must be provided. 7. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected scalp scar. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must elicit from the Veteran and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment consistent with his education and occupational experience due to his service-connected scalp scars, irrespective of age and any non service-connected disabilities. 8. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 9. Then, readjudicate the remaining claims on appeal. The adjudication of the claim for entitlement to TDIU should include consideration for a referral to VA's Director of Compensation and Pension (C&P) for consideration under 38 C.F.R. § 4.16 (b). 38 C.F.R. § 4.16 (2017). If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The rationale for all opinions expressed must be provided. 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). John J. Crowley 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).