Citation Nr: 20022042 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-49 469 DATE: March 30, 2020 REMANDED The claim of entitlement to an increased (compensable) rating for status post right shoulder repair (capsulitis and impingement) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to April 1997. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2015 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied the claim for an increased rating for his right shoulder disability, continuing a 0 percent (noncompensable) rating. In October 2015, the Veteran filed a notice of disagreement (NOD). In February 2016, the RO issued a statement of the case (SOC). In September 2016, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). In December 2016, the RO awarded the Veteran a temporary total rating for the right shoulder disability from August 11, 2016 through September 20, 2016, and continued the 0 percent rating from October 1, 2016. Notably, evaluation of the disability under consideration excludes the period during which the temporary total rating was assigned. In August 2019, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the claims file. The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on this claim, prior to appellate consideration, is warranted. The Veteran was last afforded a VA examination of his right shoulder disability in March 2017. Since that time, the Veteran testified that his right shoulder disability has worsened. As such evidence suggests a worsening of the right shoulder disability since the March 2017 VA examination, he should be afforded a contemporaneous VA examination of the right shoulder on remand. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Regarding VA treatment, the claims file included treatment records from the VA Saginaw Vista electronic records system (dated in September 2015) and from the Bad Axe Community Based Outpatient Center (CBOC) (dated from September 2015 to October 2016). As more recent VA medical records may well exist, the AOJ should obtain any records of outstanding VA evaluation and/or treatment of the Veteran, to include from the VA Saginaw system and Bad Axe VA medical facility. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding private (non-VA) treatment records, to include from St. Mary’s Orthopedics. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Adjudication of the increased rating claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. The matter is hereby REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran, to include records from the VA Saginaw system and Bad Axe VA medical facility, dated since September 2015 and October 2016, respectively. Follow the procedures set forth in 38 C.F.R. § 3.159 as regards obtaining records from Federal facilities. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding pertinent any private (non-VA) medical records, including from St. Mary’s Orthopedics. Clearly explain to the Veteran that he has a full one-year period to respond (although the VA may decide the claims within a one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA shoulder examination by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented history and lay assertions. The examiner should conduct range of motion testing of the right shoulder (expressed in degrees) on both active motion and passive motion and in both weight bearing and non-weight bearing (as appropriate). The examiner should also conduct range of motion testing of the left shoulder, for comparison purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should render specific findings as to whether, during the examination, 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 motion-limiting pain begins. Also, if the examination is not conducted during a flare-up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss 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 specifically indicate whether the Veteran is able to raise his right arm above shoulder level. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include consideration of whether staged rating of the right shoulder disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.