Citation Nr: 1817286	
Decision Date: 03/19/18    Archive Date: 03/30/18

DOCKET NO.  12-24 935	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a rating higher than 10 percent for the period prior to November 17, 2014, and higher than 20 percent since that date for post-operative residuals of left acromioclavicular joint separation.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel
INTRODUCTION

The Veteran served on active duty from June 1979 to June 1982.

This matter comes before the Board of Veterans' Appeals on appeal from a June 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In November 2014, the Veteran and his wife testified before the undersigned at a Board hearing held via live video conference. A transcript of that hearing is associated with the claims file.

In July 2017, the Board remanded the case to the AOJ for additional development.

The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required.


REMAND

The July 2017 remand directed that another examination of the Veteran be arranged. Among the actions directed for the examination was that the examiner test range of motion both passively (PROM) and actively (AROM), to comply with Correia v. McDonald, 28 Vet. App. 158 (2016). The examination report reflects that PROM was not tested. See 10/17/2017  C&P Exam, p. 17.

Failure to comply with a Board remand mandates another remand. See Stegall v. West, 11 Vet. App. 268 (1998). 

Accordingly, the case is REMANDED for the following action:

1. The AOJ shall ask the examiner who conducted the October 2017 examination if ROM was in fact tested passively but not recorded?

2. If the answer to the above question is, no, then arrange another examination with specific emphasis that ROM will be tested both passively and actively. Also ask the examiner to review the October 2017 examination report and opine whether the noted findings suggest PROM would have been greater or lesser than the recorded AROM.

3. After the above is complete, re-adjudicate the issue on appeal. If the decision remains in anyway adverse to the Veteran, issue him and his representative a Supplemental Statement of the Case (SSOC) and then return the case to the Board, if all is in order. 

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 (West 2012).



_________________________________________________
ERIC S. LEBOFF
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).