Citation Nr: 1736628	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-17 010	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


Entitlement to a rating in excess of 20 percent for osteoarthritis of the right shoulder prior to October 13, 2014, and in excess of 30 percent thereafter. 


Appellant represented by:	The American Legion


The Veteran and his spouse


S. Mountford, Associate Counsel


The Veteran had active military service from June 1945 to November 1946. 

This matter comes before the Board of Veterans' Appeals (Board) from the February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Jurisdiction is now with the Winston-Salem, North Carolina RO. 

The Veteran appeared at an October 2012 hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.  This matter was previously before the Board in February 2016 and was remanded for further development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).  The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). 

In August 2013, the VA Appeals Management Center granted service connection for the Veteran's right shoulder disability evaluated as 20% disabling.  The Veteran never submitted a notice of disagreement disagreeing with this decision.  Following entry of the rating decision in August 2013, the RO included the issue of entitlement to a higher rating for a right shoulder disability in its supplemental statement of the case (SSOC) in January 2015.  Interestingly, the only adjudicative action referenced therein was the Board's October 2013 remand.  It is significant that the Board did not address directly or indirectly any question as to the ratings for assignment for the right shoulder in its October 2013 remand or even refer that matter for further development and adjudication.  The January 2015 SSOC indicates that the RO granted the Veteran's request for an increased evaluation in his service connected right shoulder disability, but without identifying the underlying notice of disagreement or claim for increase, inferred or otherwise, and its date of receipt by VA.  

In February 2016, the Board remanded this matter to clarify on what basis the issue of the Veteran's entitlement to higher ratings for right shoulder osteoarthritis was included in the SSOC of January 2015.  Additionally, the Board instructed the RO to comply with several procedural mandates.  To date, such activity has not taken place.  Instead, the RO issued two June 2016 rating decisions increasing the Veteran's right shoulder disability evaluation to 30 percent disabling beginning October 13, 2014.  

As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998).  As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. 

Thereby, on remand, the RO must comply with the VA's duties to assist and notify the Veteran regarding the issue on appeal.  Additionally, a Statement of the Case has not been issued; therefore, the Board directs that the RO issue both, as directed below, in accordance with 38 C.F.R. §§ 19.26, 19.29 and Manlincon v. West, 12 Vet. App. 238 (1999).  Thus, the Board accepts limited jurisdiction over this issue, for the sole purpose of remanding to order issuance of a Statement of the Case along with information about the process for perfecting an appeal, if the Veteran so desires.

Additionally, if an appeal is subsequently perfected, the RO should schedule the Veteran for a VA right shoulder examination and review the November 2014 VA shoulder examination before readjudicating his claim.  Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records.  See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  
Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Furnish the Veteran with a Statement of the Case pertaining to the issue of an increased rating for a right shoulder disability. This claim will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal.

2. If, and only if the Veteran subsequently submits a timely appeal statement, undertake the following development.  Obtain any outstanding VA treatment records and associate those documents with the Veteran's claims file. 

3.  Once the above development has been completed, forward a copy of the Veteran's claims file, to include a copy of this Remand, to a qualified VA medical professional for a VA right shoulder examination.  

The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail.  The examiner should elicit information as to the frequency, duration, and severity of any associated symptomatology, and loss of function in daily activities, including work and physical activity.  

The examiner should determine the limitation of motion, if any, of the Veteran's right shoulder and discuss whether there is pain on movement, swelling, tenderness, deformity or atrophy of disuse.  The examiner should also determine whether there is any evidence of ligamentous laxity or other impairment.  Repetitive motion testing should be conducted, and the examiner should comment on whether there is additional functional loss due to weakness, fatigability, incoordination, or pain on movement.  (Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.)

To the extent possible, the examiner should conduct and record both active and passive range of motion testing of the Veteran's right shoulder.  The examiner should examine the Veteran's right shoulder for evidence of pain throughout both active and passive ranges of motion, in weight bearing, and non-weight bearing.  If this testing is not possible, please explain why.

The examiner's findings should be set forth in a comprehensive report and, for any opinions proffered, a detailed explanation for the reasons for such opinion(s) should be provided.

All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided.  If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation.

4. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary.

5. Then, the RO should readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.  
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).


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