Citation Nr: 0001728 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 96-34 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an increased evaluation for left shoulder impingement syndrome, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from June 1992 to June 1995. This appeal to the Board of Veterans' Appeals (the Board) was initially brought, in pertinent part, from an October 1995 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City which granted service connection for left shoulder impingement syndrome and contusion of sciatic nerve with sciatic irritation, positive sciatic notch test, and sciatic pain of the left hip. The RO assigned 10 percent evaluations to each disability. In September 1997, the Board in part remanded the issue of entitlement to an increased evaluation for left shoulder impingement syndrome, evaluated as 10 percent disabling. The pertinent details of the 1997 remand will be further delineated as necessary below. However, in essence, the Board primarily sought a specific and detailed medical evaluation to determine the nature and extent of impairment due to the veteran's disabilities. In a February 1998 rating determination, the RO granted service connection for irritation of the ulnar nerve secondary to the veteran's left shoulder disability and assigned a 10 percent rating. Thereafter, the RO changed the rating for the disability from "mild shoulder impingement syndrome" to "recurrent subluxation and occasional dislocation of the left (non dominant) shoulder", and continued the prior 10 percent rating. In July 1998, the Board addressed the issues of entitlement to an increased evaluation for impingement syndrome of the left shoulder (minor), currently evaluated as 10 percent disabling; entitlement to an increased evaluation for impairment of the ulnar nerve of the left arm, currently evaluated as 10 percent disabling; and entitlement to an increased evaluation for the residuals of a contusion of the sciatic nerve with left hip pain, currently evaluated as 10 percent disabling. The Board denied increased ratings for each of these disabilities. The veteran filed an appeal with 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"). On Joint Motion, in a Order issued May 19, 1999, pursuant to 38 U.S.C.A. § 7252(a), and for reasons which will be further delineated as required below, the Court vacated the prior Board decision and remanded the issue of entitlement to an increased evaluation for left shoulder impingement syndrome, currently evaluated as 10 percent disabling. The Court dismissed the other two issues. [citation redacted]. REMAND Initially, the Board finds that the appellant's claim for increased evaluation for his left shoulder disability is well grounded within the meaning of 38 U.S.C.A. § 5107. That is, the claim is plausible. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990);see also, Proscelle v. Derwinski, 2 Vet. App. 269 (1992). And the veteran's assertions concerning the severity of his left shoulder disability (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an increased evaluation for that disability is well grounded. King v. Brown, 5 Vet. App. 19 (1993). Accordingly, there is an obligation to assist in the development of evidence in the case. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. The essence of the Joint Motion and the Court Order was that at the time of the 1997 remand, the Board had requested certain specific neurological and orthopedic assessments and other development that had not been completed. Specifically, it was noted that a single examination had been done by an examiner the qualifications of which were not delineated as either orthopedic or neurological, while the Board's remand had requested examinations by an orthopedic surgeon and a neurologist. The Court also noted that required opinions had not been provided. And that accordingly, in the aggregate, and specifically, the examination was inadequate for rating purposes pursuant to 38 C.F.R. § 4.2. The Court also noted that a further remand to the RO was required to effectuate the remand instructions previously issued by the Board. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In any event, it is also noted that the veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). Therefore, pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1996), the Board is deferring adjudication of the issue of entitlement to an increased evaluation for left shoulder impingement syndrome pending a remand of the case to the RO for further development as follows: 1. The RO should contact the veteran and give him another opportunity to identify all sources of treatment, VA and non-VA, inpatient and outpatient, for his left shoulder problems since February 1998. After obtaining any necessary authorization, the RO should obtain and associate with the claims file copies of the veteran's complete treatment reports from all sources identified. 2. The RO should arrange for an examination of the appellant by a VA orthopedic surgeon and a neurologist, whose specialties should be clearly delineated in the examination report, and who have not previously seen him for the purpose of ascertaining the current nature and extent of severity of his left shoulder problems. The claims file and a separate copy of this remand, as well as the remand of 1997 and the 1999 Court Order and Joint Motion, must be made available to and reviewed by the examiner prior to conduction and completion of the examination. Any indicated studies must be conducted. The examiners should express an opinion as to the nature of comparable deterioration in the left shoulder disability, particularly with regard findings such as pain, instability and tendency to more frequently subluxate and thereafter, to be more difficult to reduce, etc., and how this may impact upon daily living, work and other activities. Any opinions expressed must be accompanied by a complete rationale. In this regard, the physicians are to assess the entire left shoulder disability picture under the guidelines set forth in all pertinent regulations and guidelines including 38 C.F.R. §§ 4.40, 4.45, 4.59 and as contemplated by the judicial tenets of Hicks v. Brown, 8 Vet. App. 417 (1995); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and the required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. See Stegall v. West, op. cit. 4. After undertaking any development deemed appropriate in addition to that specified above, the RO should re- adjudicate the issue of entitlement to an increased rating for left shoulder disability under all pertinent criteria. If the benefits requested on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran is advised that the examination requested in this remand is necessary to adjudicate his claim, and that a failure, without good cause, to appear for scheduled examinations, could result in the denial of his claim. 38 C.F.R. § 3.655 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. Mark D. Hindin Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).