Citation Nr: 0004303 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 94-30 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable rating for the service- connected residuals of a right shoulder injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. P. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from July 1990 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. That rating decision granted service connection for a right shoulder disorder and assigned a noncompensable (0%) disability rating, effective June 1992. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), and in July 1999 the Court issued an Order vacating the Board's decision and remanding the case to the Board for further proceedings. The Board has recharacterized the issue of entitlement to a compensable rating for the service-connected residuals of a right shoulder injury at issue in order to comply with the recent opinion by the United States Court of Appeals for Veterans Affairs (Court), in Fenderson v. West, 12 Vet. App. 119 (1999). In that case, the Court held, in pertinent part, that the RO had never properly provided the appellant with a statement of the case (SOC) concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' ... rather than as a disagreement with the original rating award, which is what it was." Fenderson. 12 Vet. App. 132 (1999), emphasis in the original. The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for issuance of a SOC. Id. As in Fenderson, the RO in this case, through no fault of its own, has also misidentified the issue on appeal as a claim for an increased disability rating, rather than as a disagreement with the original rating awards for these disorders. However, the RO issued a SOC providing the appellant with the appropriate applicable law and regulations and an adequate discussion of the basis for the RO's assignment of the initial disability evaluation for these conditions. In addition, the appellant's pleadings herein clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Consequently, the Board sees no prejudice to the appellant in recharacterizing the issue on appeal to properly reflect the appellant's disagreement with the initial disability evaluation assigned. See Bernard v. Brown, 4 Vet. App. 384 (1993). REMAND The veteran has presented a well grounded claim for increased disability evaluation for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). While the veteran's claim is well grounded, the duty to assist him in its development has not yet been fulfilled. The Board notes that, with the exception of a 1992 VA examination report, there is no more recent medical evidence of record related to the veteran's service connected right shoulder disability. However, there is some indication that the veteran is receiving treatment at VA medical facilities for his service connected orthopedic disabilities. Therefore the RO should obtain the veteran's VA medical treatment records. Records generated by VA are constructively included within the record. If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The most recent VA examination of the veteran is the better part of a decade old. The issue at hand relates to functional impairment of the veteran's right shoulder. Therefore, another VA examination of the veteran should be conducted. The Court has also held that, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App. 213 (1992). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that 38 C.F.R. §§ 4.40, 4.45 (1999) were not subsumed into the diagnostic codes under which a veteran's disabilities are rated. Therefore, the Board has to consider the "functional loss" of a musculoskeletal disability under 38 C.F.R. § 4.40 (1999), separate from any consideration of the veteran's disability under the diagnostic codes. DeLuca, 8 Vet. App. 202, 206 (1995). Functional loss may occur as a result of weakness or pain on motion of the affected body part. 38 C.F.R. § 4.40 (1999). The factors involved in evaluating, and rating, disabilities of the joints include: weakness; fatigability; incoordination; restricted or excess movement of the joint; or, pain on movement. 38 C.F.R. § 4.45 (1999). These factors do not specifically relate to muscle or nerve injuries independently of each other, but rather, refer to overall factors which must be considered when rating the veteran's joint injury. DeLuca, 8 Vet. App. 202, 206-07 (1995). In light of the foregoing, the Board would be remiss if it were to attempt to decide the issues on appeal without first obtaining all the pertinent evidence that is missing and scheduling the veteran for another VA disability compensation examination. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim the case is REMANDED to the RO for the following development: 1. The veteran should be asked to provide a list containing the names of all health care professionals and/or facilities (private and governmental) where he had been treated for his service connected right shoulder disability since his separation form military service in 1992. Subsequently, and after securing the proper authorizations where necessary, the RO should make arrangements in order to obtain all the records of treatment from all the sources listed by the veteran which are not already on file. The Board is particularly interested in obtaining all records and reports of any treatment at VA medical facilities. All information obtained should be made part of the file. 2. The veteran should be accorded a VA orthopedic examination. The claims folder and a copy of this remand must be made available and reviewed by the examiner. All necessary tests should be conducted. The examiner should review the results of any testing prior to completion of the report. The report of examination should be comprehensive and include a detailed account of all manifestations of right shoulder pathology, including arthritis, if any, found to be present. The physician should provide complete rationale for all conclusions reached. a. With respect to the functioning of the veteran's right shoulder, attention should be given to: the presence or absence of pain, any limitation of motion; swelling; ankylosis; crepitus; tenderness; dislocation, nonunion, or malunion of the clavicle and/or scapula; deformity; or impairment. The examiner should provide complete and detailed discussion with respect to any weakness; fatigability; incoordination; restricted movement; or of pain on motion. The examiner should provide a description of the effect, if any, of the veteran's pain on the function and movement of his right shoulder. See DeLuca v. Brown, 8 Vet. App. 202 (1995); See 38 C.F.R. § 4.40 (1999) (functional loss may be due to pain, supported by adequate pathology). In particular, it should be ascertained whether there is additional motion lost due to pain on use or during exacerbation of the disability. b. The examiner is requested to comment on the degree of limitation on normal functioning caused by pain. Range of motion testing should be conducted to include the right left shoulders so that there is a range of motion for comparison. The examining physician should specify the results in actual numbers and degrees. The examiner should also indicate the normal range of motion for the areas tested and how the veteran's range of motion deviates from these norms. c. The examining physician is requested to comment on the following: Is there objective evidence of pain on motion of the right shoulder? Does such pain affect the veteran's ability to lift with his right upper extremity? If so, to what extent? 3. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. Subsequently, the RO should consider the issue of entitlement to an initial compensable rating for the service- connected residuals of a right shoulder injury which is on appeal. In this regard, the RO should give full consideration to the following decisions: Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate, or staged, ratings can be assigned for separate periods of time based on the facts found). DeLuca v. Brown, 8 Vet. App. 202 (1995) and Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999) with respect to functional impairment. Once the foregoing has been accomplished and, if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. The Board intimates no opinion as to the ultimate outcome of this case. Further adjudication of the question involving entitlement to an initial compensable rating for the service-connected residuals of a right shoulder injury will be postponed until the remand action is completed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).