BVA9503206 DOCKET NO. 93-07 712 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased (compensable) rating for residuals of a right shoulder fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from June 1976 to December 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1991 decision by the Department of Veterans Affairs (VA), Portland, Oregon, Regional Office (RO), which, in part, denied a compensable rating for residuals of a fracture of the right shoulder. (The veteran also appealed the RO's denial of a rating in excess of 10 percent for a post concussion syndrome with headaches, but his appeal was not perfected in a timely manner. 38 C.F.R. § 20.202 (1993)). He testified at a hearing conducted at the RO in September 1991. An RO decision in November 1992, during this appeal, denied the veteran's claims for increased ratings for his service-connected low back strain, right knee disability, residuals of a neck injury, and post concussion syndrome with headaches. In subsequently submitted written arguments, his representative noted clinical findings pertaining to the right hand and neck disorders, but a timely notice of disagreement pertaining to these disorders was not received. 38 C.F.R. § 20.201. Consequently, the Board refers this matter to the RO for clarification and appropriate action. REMAND The veteran's claim that his residuals of a fracture of the right shoulder warrant a compensable disability is well-grounded, meaning it is not inherently implausible, and a review of the file indicates there is a further duty to assist him in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159. In reviewing the record, I find that the most recent VA rating examination was performed several years ago, in March 1991, and the United States Court of Veterans Appeals (Court) has said that the duty to assist may, under appropriate circumstances, include a duty to conduct a thorough and contemporaneous medical examination. Caffery v. Brown, 6 Vet.App. 377, 381 (1994); Talbert v. Brown, U.S. Vet. App. No. 92-1275 (December 1994). Given the fact that the veteran has claimed that his right shoulder disability has increased in severity in recent years and considering the amount of time that has elapsed since his most recent VA compensation examination, it is my judgment that a more contemporaneous orthopedic examination is warranted. Further review of the record reveals that the veteran was evaluated for his right shoulder disability in a VA outpatient clinic during the latter part of 1991 and at a private medical facility in May 1992. He testified at the September 1992 RO hearing that he had received treatment at both facilities for the disability in question and although some information is on file, the new examination should be conducted with the benefit of any additional clinical records, as the Court has also said that the duty to assist the veteran includes obtaining all relevant treatment records. Murphy v. Derwinski, 1 Vet.App. 78 (1990); Murincsak v. Derwinski, 2 Vet.App. 363 (1992). Hence, this case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran, with the assistance of his representative, to prepare a detailed list of all sources (VA or other) of examination and treatment for his right shoulder disability since May 1992. Names and addresses of the medical providers, and dates of examination and treatment, should be listed. After obtaining any needed release forms from him, the RO should directly contact the medical providers and obtain the records. 38 C.F.R. § 3.159. 2. Thereafter, the veteran should undergo a VA orthopedic examination for the purpose of determining the current severity of his service-connected residuals of a fracture of the right shoulder. All indicated tests, including range of motion studies of the right shoulder, and X-ray study must be conducted. The examiner should indicate whether there is evidence of malunion, nonunion, or dislocation of the shoulder joint or limitation of motion of the right arm at the shoulder level, midway between the side and the shoulder level, or to 25 degrees from the side. The examiner should also indicate whether any arthritic pathology in the shoulder joint is manifested and if so, whether motion is painful as a result thereof. The claims file must be made available to and reviewed by the examiner prior to the examination. Thereafter, the claim should be reviewed by the RO. If the veteran is dissatisfied with the decision, he and his representative should be issued a supplemental statement of the case and given an opportunity to respond. Then the case should be returned to the Board. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).