Citation Nr: 1808927 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 08-13 043A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for residuals, gunshot wound of the right shoulder (major), currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2006, November 2006 and May 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the course of the appeal, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) in September 2009. A transcript of the hearing is of record. In an October 2017 letter, the Veteran was informed that the VLJ who conducted his hearing is no longer employed by the Board. The letter, which was sent to the Veteran's latest address of record (updated to VA in August 2016), offered the Veteran the opportunity to testify at another hearing. Unfortunately, the letter was returned as undeliverable and the Veteran has not provided VA with a new or different mailing address. The record does not suggest the presence of an alternative address to which VA correspondence may be sent. Because a copy of the October 2017 letter was also provided to the Veteran's representative and because there was no response within the required 30 day time limit, the Veteran is deemed to have waived his right to another hearing before the Board. In July 2010, the Board remanded the claims for further development. In a December 2010 rating decision, the RO denied service connection for degenerative disc disease and spondylosis of cervical spine as well as service connection for depression and malingering (claimed as post traumatic stress disorder). In November 2011, the Veteran filed an NOD. In June 2016, the Veteran was furnished an SOC. In August 2016, the Veteran filed a substantive appeal (VA Form 9). As such, the requirements for perfecting an appeal to the Board have been met with respect to these issues. Notably, however, the RO has not yet certified these issues to the Board, signifying that the originating agency is not fully completed with development. As adjudicative actions by the Board at this time may be premature, the Board will not assume jurisdiction over these issues at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran claims that a higher rating is warranted for his service-connected right shoulder disorder. He was last examined for disability evaluation purposes in September 2015. Since then, he was seen in the VA emergency room department in January and February 2016 for complaints of increased shoulder pain for which he subsequently underwent steroid injections. As the evidence suggests a potential worsening in severity of the Veteran's shoulder disability since his last examination, the Board believes an updated VA examination is necessary before a decision can be made on the merits. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The VA examiner should clarify the muscle groups involved in the current residuals of his right shoulder service-connected disability. The Veteran's service connected right shoulder disability is currently rated under Diagnostic Code 5302, which refers to Muscle Group (MG) II. On the March 2007 VA examination, the examiner stated that the wound involved MGs III and IV. On December 2011 VA examination, the examiner reported that the gunshot wound residuals involved MG I, II, and XXIII. On the September 2015 VA examination, the examiner did not specifically address the involved MGs. MG I relates to damage of the extrinsic muscles of shoulder girdle trapezius, levator scapulae, and serratus magnus. MG II relates to the damage of the extrinsic muscles of the shoulder girdle: pectoralis major, latissimus dorsi and teres major, pectoralis minor, and rhomboid. MG III which relates to the damage of the intrinsic muscles of the shoulder girdle: pectoralis major and deltoid. MG IV relates to damage of the additional intrinsic muscles of the shoulder girdle: supraspinatus, infraspinatus and teres minor, subscapularis, and coracobrachialis. MG XXIII relates to damage of the muscles of the side and back of neck: suboccipital, lateral vertebral, and anterior vertebral muscles. The final sentence of 38 C.F.R. § 4.59 (2017) addressing painful motion provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." Such should be achieved at the examination on remand. Correia v. McDonald, 28 Vet. App. 158 (2016). Following the September 2015 VA examination, the Court of Appeals for Veterans Claims (the Court) found that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion as to the degree of such impairment in applying the principles enumerated in DeLuca v. Brown, 8 Vet. App. 202 (1995). Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this regard, the Court noted that VA's Clinician's Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flares from Veterans. Id. The Court found that the examination in question was inadequate because the examiner, although acknowledging that the Appellant was not then suffering from a flare of any of his conditions, failed to ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. Id. As the VA examination addressing this claim does not reflect such consideration, such should be requested from the VA clinician who conducts the VA examination. The record reflects that the Veteran receives ongoing VA treatment for his right shoulder disability. Additionally, a February 2016 treatment record noted that an MRI would be scheduled for the Veteran's right shoulder disability; however, treatment records dated to April 2016 do not include any MRI results. On remand, any outstanding and relevant VA treatment records should be obtained and associated with the file on remand. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinksi, 2 Vet. App. 611 (1992). The Board notes that the issue of entitlement to TDIU is inextricably intertwined with the claim being remanded herein, as the outcome of the increased rating claim may impact the outcome of the TDIU claim. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Hence, the Board will defer appellate consideration of the issue of entitlement to TDIU pending completion of the action requested below. Accordingly, the case is REMANDED for the following action: 1. Attempt to contact the Veteran by telephone to verify his correct mailing address, and then update the Veteran's records accordingly. 2. Obtain and associate with the Veteran's electronic claims file any outstanding relevant VA treatment records dated after April 2016 as well as any reports associated with an MRI of the right shoulder that was referenced in treatment records dated on February 16, 2016. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected residuals of a gunshot wound of the right shoulder with injury to Muscle Group II. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, and all Muscle Groups (MGs) involved as well as all symptoms should be described in detail. The examiner should conduct range of motion testing, and also test for pain in active motion, passive motion, weight-bearing, and nonweight-bearing in both shoulders. The examiner should estimate the functional limitations resulting from the service connected residuals of a gunshot wound of the right shoulder in terms of range of motion, to include during repetitive motion as well as during flare-ups. If the Veteran notes a history of flare-ups, but they are not actually shown during examination, the examiner should obtain adequate information regarding the impairment resulting from flare-ups by alternative means, to include prior treatment records and the Veteran's own statements. The examiner should identify each MG affected by service-connected disability and distinguish any symptoms and findings not caused by service-connected disability. The examiner should indicate whether there is evidence of pain, loss of deep fascia, loss of muscle substance, or loss of normal firm resistance of muscles compared with the sound side. The examiner should perform tests of strength and endurance of the muscle groups involved. The examiner should consider that the March 2007 VA examiner identified MGs III and IV and the December 2011 VA examiner identified MGs I, II, and XXIII. The examiner should note any neurological impairment in the upper right extremity that is attributable to the Veteran's service-connected disability; and whether such neurological findings are mild, moderate, moderately severe, or severe. The examiner should distinguish any symptoms and findings not caused by service-connected disability. If it is not possible to distinguish such symptoms without resort to speculation, then this should be stated. The examiner should also comment on the size and shape of any scars that are associated with the disability at issue, and note whether such scars are superficial or deep and if there is any limitation of motion due to such scars. The examination report should include a complete rationale for all opinions and conclusions reached. 4. Readjudicate the issues on appeal, to include the issue of TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has 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. §§ 5109B, 7112 (West 2012). _________________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).