Citation Nr: 0004059 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-03 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased evaluation for a left shoulder disability (residuals of left shoulder injury with probable bursa inflammation), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her father ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from January 1989 to June 1993. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1994 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in January 1998. Although the appellant was awarded an increased evaluation for her left shoulder disability during the pendency of this appeal, from noncompensable to 10 percent disabling, this claim remains in appellate status because she has not withdrawn it and less than the maximum available benefits have been awarded. See AB v. Brown, 6 Vet. App. 25 (1993). Consideration of staged ratings for the left shoulder disability is not required, however, as the RO's award of the increased rating was made effective from the date of original entitlement in June 1993. See Fenderson v. West, 12 Vet. App. 119 (1999). The record reflects that the appellant and her father appeared at a hearing before the undersigned Member of the Board on August 14, 1997. A transcript of that hearing has been associated with the record on appeal. REMAND This case must again be remanded to ensure full and substantial compliance with the Board's remand instructions of January 1998. In that remand, the Board instructed the RO to schedule the appellant for a comprehensive VA examination to determine the nature and degree of severity of her left shoulder disability. The RO was also instructed to consider whether there was any additional functional loss due to pain under 38 C.F.R. § 4.40 and/or due to weakness, fatigability, incoordination or pain on movement of the left shoulder joint under 38 C.F.R. § 4.45, as required by the precedent holding of the U. S. Court of Appeals for Veterans Claims (the Court) in DeLuca v. Brown, 8 Vet. App. 202 (1995). On remand, an examination was scheduled and conducted in August 1998, but that examination was returned by the RO as inadequate for rating purposes in October 1998 on the grounds that it failed to fully address functional loss due to pain. After receiving an addendum report prepared by the examining VA physician in November 1998, the RO proceeded to rate the left shoulder disability on the facts found without further development. In the addendum report, the examiner stated that as an endocrinologist, he had no special expertise in orthopedics or rheumatology and hence, was not qualified to assess the degree of functional loss on the basis of pain. However, the Board agrees with the arguments advanced by the appellant's representative in the December 1999 VA Form 646 that the examiner's addendum report failed to adequately address the deficiencies noted by the RO in the August 1998 examination. Under these circumstances, the remand instructions of the Board have yet to be satisfied. While the delay necessitated by another remand is unfortunate, a recent precedent decision of the Court held that the Board is responsible for entering the final decision on behalf of the Secretary in claims for entitlement to veterans' benefits, see 38 U.S.C.A. § 7104(a), and as such, remand instructions to the RO in an appealed case are neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268 (1998) (the Court vacated and remanded a Board's decision because it failed to ensure that the regional office achieved full compliance with specific instructions contained in a Board remand regarding scheduling of VA compensation examinations). Therefore, full and substantial compliance with the Board's remand of January 1998 [Instruction #2, pg. 5-6] will require the RO to reschedule the appellant for a VA compensation examination to be conducted by an orthopedic specialist in order to fully address the nature and degree of severity of her left shoulder disability, to include the orthopedic examiner's assessment of functional loss within the context of the Court's holding in DeLuca, supra, and 38 C.F.R. §§ 4.40 and 4.45. Accordingly, this case is REMANDED to the RO for the following action: 1. The RO must reschedule the appellant for a VA orthopedic compensation examination to determine the nature and extent of impairment caused by her left shoulder disability. The claims folder and a copy of this remand must be made available to and reviewed by the examining physician in conjunction with the requested examination. The examiner should indicate in his/her report whether the claims folder was provided in conjunction with the examination and reviewed in its entirety. All appropriate diagnostic tests and studies deemed necessary by the examiner to render the opinions requested, and to assess the severity of the left shoulder disability, to include neurological testing and x-rays, if appropriate, should be conducted. All pertinent symptomatology and medical findings should be reported in detail, to include any related neurological- peripheral nerve, muscular-strength, and/or bursa inflammation impairment in the left shoulder. In accordance with DeLuca, supra, the examination report must cover any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, and pain with use for the left shoulder disability, and provide an opinion as to how these factors result in any limitation of motion and/or loss of function. If the appellant describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. Moreover, the orthopedic physician should be requested to include a complete and detailed discussion of all functional limitations associated with the left shoulder disability in a general sense, including precipitating and aggravating factors (i.e., movement, activity and repeated use of the left arm), effectiveness of any pain medication or other treatment for relief of pain, functional restrictions from pain on motion, and the effect the disability has upon the appellant's daily activities. In that the examination is to be conducted for compensation rather than for treatment purposes, the physician should be advised to address the functional impairment of the appellant's left shoulder disability in correlation with the applicable musculoskeletal and sensory nerve diagnostic criteria set forth in the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999). The physician should address the degree of severity and medical findings that specifically correspond to the criteria listed in the Rating Schedule for traumatic arthritis, limitation of motion, etc., and any other related musculoskeletal impairment pursuant to the applicable diagnostic codes found under 38 C.F.R. § 4.71a, as well as for any existing neurological impairment, as is appropriate based on the medical findings. The examiner must conduct range of motion (ROM) testing, and should report the exact ROM of the left shoulder. The ROM results should be set forth in degrees, and the report should include information as to what is considered "normal" range of motion. The examiner should further address the extent of functional impairment attributable to any reported pain. Also, the examiner should provide an opinion addressing the degree of earning capacity impairment due exclusively to the appellant's service-connected left shoulder disability given her present employment situation and her statements/complaints regarding work- related impairment caused by the left shoulder disability. The examiner should provide complete rationale for all conclusions reached. 2. The RO should review the claims folder and ensure that the foregoing development action has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 3. After completion of the above, the RO must readjudicate the issue on appeal with consideration of all the evidence of record. The RO should also consider whether the left shoulder disability warrants referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (1999). As this issue has been in continuous appealed status before the Board, the RO should furnish the appellant and her representative a supplemental statement of the case if any benefits sought thereby remain denied. Thereafter, the case should be returned to the Board, if in order. 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. JOAQUIN AGUAYO-PERELES 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).