Citation Nr: 1808041 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-23 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right arm disorder, claimed as secondary to the service-connected right shoulder disability. 2. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a disability rating in excess of 20 percent for a cervical spine disability. 4. Entitlement to a compensable disability rating for the right shoulder disability prior to October 28, 2008; a disability rating in excess of 10 percent from October 28, 2008; and a disability rating in excess of 20 percent from April 26, 2010. 5. Entitlement to a total disability rating due to service-connected disabilities based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Carl Kazmierczak, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a January 2010 rating decision, the RO granted a 10 percent disability rating for the right shoulder disability (effective October 28, 2008). The Board notes that the Veteran filed an increased rating claim for the right shoulder disability in July 2006. The RO denied that claim in a July 2007 rating decision. Following a January 2010 statement of the case (SOC), he did not file a substantive appeal; however, also in January 2010, the RO issued a rating decision that granted a 10 percent disability rating (effective October 28, 2008). The Veteran filed a November 2010 notice of disagreement (NOD) as to that January 2010 rating decision. In a November 2011 letter, the RO informed the Veteran that it did not accept the November 2010 NOD as a substantive appeal as the time limit to file a substantive appeal had passed. Although the Veteran did not file a timely substantively appeal, he did file a timely NOD. As such, although the July 2006 rating decision (from which the January 2010 SOC had arisen) is not on appeal, the January 2010 rating decision (granting a 10 percent disability rating from October 28, 2008) has been appealed to the Board. Furthermore, as the January 2010 rating decision also arose from the July 2006 claim, the claims period for the increased rating claim has continued since the filing of that claim. Although the April 2014 SOC indicates that the Veteran's claims are for earlier effective dates for the grants of increased rating, for the sake of clarity, the Board has recharacterized them as staged increased rating claims as documented above. Additionally, although the April 2014 SOC has indicated that the appeal period is limited to from the April 2010 claim (due to the failure of the Veteran to have filed a timely substantive appeal following the January 2010 SOC), as explained above the period on appeal is from the July 2006 claim. In a May 2011 rating decision, the RO granted service connection for PTSD (at 50 percent effective April 26, 2010), denied service connection for a right arm disorder, and granted increased ratings for the right shoulder disability (at 20 percent effective April 26, 2010) and cervical spine disability (at 20 percent effective April 26, 2010). In an April 2014 rating decision, the RO denied a TDIU. In September 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge by videoconference; a transcript of that hearing is of record. During the September 2017 Board hearing, the Veteran appears to have raised a claim for service connection for a left arm disorder secondary to his service-connected for the right shoulder disability. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 79 Fed. Reg. 57,660, 57,695 (Sept. 25, 2014) (codified at 38 C.F.R. § 3.155(a)). When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary. Id. In light of the foregoing, the Veteran's claim for service connection for a left arm disorder secondary to the right shoulder disability is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. 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. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As to the increased rating claims for the right shoulder disability, PTSD, and the cervical spine, during the September 2017 Board hearing, the Veteran has indicated that his disabilities have worsened since his last VA examinations in April 2011. As such, current VA examinations are necessary. As to the claim for service connection for a right arm disorder secondary to the service-connected for the right shoulder disability, a VA examination is necessary as one has not been provided. Regarding the TDIU claim, that claim is inextricably intertwined with the other claims being remanded herein and cannot yet be decided. The Veteran should be given an opportunity to identify any non-VA healthcare provider who treated him for the claimed disorders, including those mental health and orthopedic providers from whom the Veteran has already provided some records from (with a May 2016 correspondence) and the shoulder treatment provider identified during the September 2017 Board hearing. Additionally, all unassociated VA medical records need to be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be given an opportunity to identify any non-VA healthcare provider who treated him for the claimed disorders, including from the mental health and orthopedic providers indicated with the records from the Veteran received in May 2016 and the shoulder treatment provider of a future MRI noted during the September 2017 Board hearing. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. The AOJ should obtain unassociated VA treatment records. All reasonable attempts should be made to obtain such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The AOJ should schedule the Veteran for an appropriate examination to determine the current severity of the cervical spine disability. The examiner should conduct range of motion testing of the cervical spine (expressed in degrees), including active AND passive ranges of motion; and weight-bearing AND nonweight-bearing demonstrated on examination. The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the cervical spine 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 cervical spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. The examiner should clearly indicate whether the Veteran has neurological manifestations of the cervical spine disability, to include radiculopathy. For each neurological impairment identified, the examiner should clearly indicate whether such constitutes a separately ratable disability, and, if so, should assess the severity of such disability as mild, moderate, moderately severe, or severe. Additionally, considering all orthopedic and neurological findings, the physician should also render findings particularly responsive to the criteria for rating intervertebral disc syndrome (IVDS)-specifically, comment as to the existence and frequency of any of the Veteran's incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his cervical spine disability, the examiner should specify the duration of such episodes during past 12 month periods. The physician should also indicate whether, at any point since April 2010 the Veteran's disorder of the cervical spine has increased in severity, and, if so, the approximate date(s) of any such change(s). In addition, the examiner should reference any daily or occupational impairment associated with the Veteran's service-connected disorder of the cervical spine. 4. The AOJ should schedule the Veteran for a VA examination of the service-connected right shoulder and claimed right arm, to determine the current severity of the right shoulder disability and the etiology of the claimed right arm disorder. (a) For the RIGHT SHOULDER: The examiner should describe the nature and severity of all manifestations of the Veteran's disability, to include range of motion studies. He or she should note any range of motion loss which is specifically attributable to pain. Note any additional functional loss with repetition. Discuss whether any functional loss is attributable to pain during flare-ups and then quantify in degrees the motion loss during such flare-ups. Note whether there is any less or more movement than is normal; weakened movement; excess fatigability; incoordination; and pain on movement (as well as swelling, deformity, and atrophy). The examiner should also indicate whether the Veteran has any impairment (such as flail shoulder, false flail joint, fibrous union, dislocation, malunion, or clavicle or scapular impairment), and if so degree and/or frequency of impairment. If there is any ankylosis of the left shoulder, specify at what degree it is ankylosed. During the September 2017 Board hearing, the Veteran also reported of muscle atrophy, which should be considered and evaluated as to severity if found, and determined to be due to the service-connected right shoulder disability. In addition, the examiner should provide information concerning the functional impact of the service-connected disability on employability. (b) For the RIGHT ARM: The examiner should determine: (i) Whether the Veteran currently has a right arm disorder? If so, please note the diagnosed disorder(s). The examiner should specifically note consideration of the Veteran's reports of muscle atrophy and weakness. (ii) Is it at least as likely as not that a right arm disorder was incurred in or was caused by the Veteran's active service? (iii) For each currently diagnosed right arm disorder, is it at least as likely as not such was caused OR aggravated by (i.e., permanently increased in severity beyond the natural progression) the service-connected right shoulder disability? The examiner should provide an opinion as to the questions of BOTH causation AND aggravation. If the examiner finds that any right arm disorder was aggravated by a service-connected disability, he/she should determine, if possible, to what extent it was aggravated beyond the natural progression of the disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 5. The AOJ should afford the Veteran an appropriate VA examination to determine the current nature and severity of his PTSD. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 6. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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). _________________________________________________ H.M. WALKER 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).