Citation Nr: 1011002 Decision Date: 03/24/10 Archive Date: 03/31/10 DOCKET NO. 06-11 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for postoperative torn rotator cuff, right shoulder, evaluated as 20 percent disabling. 2. Whether new and material evidence has been received to reopen a claim of service connection for carpal tunnel syndrome of the right wrist as secondary to the right shoulder disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from October 1986 to October 1989, and from September 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Acting Veterans Law Judge at a hearing in June 2009. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that further development is needed on the Veteran's claims. With regards to his claim for an increased rating for postoperative torn rotator cuff, right shoulder, the Veteran was last afforded a VA examination in February 2008. At his hearing, the Veteran specifically testified that he believed that his disability had increased in severity since the last examination. Considering that the Veteran has argued that his right shoulder disability has worsened, and the fact that the Veteran has not been afforded a comprehensive VA compensation and pension examination to assess the severity of his disability since February 2008, the Board finds that it is necessary to secure additional examinations to ascertain the Veteran's level of disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). The Board acknowledges that the Veteran's last examination was just under two years ago. Nevertheless, the Court in Snuffer v. Gober held that it was error to deny a ratings claim based on results of an examination two years before. Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, a remand is warranted for a new examination. Further, during his personal hearing, the Veteran stated that his right shoulder disability prevented him for obtaining and/or retaining employment. The Veteran has therefore raised the issue of a total disability rating for compensation based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The Court recently held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. Therefore, on remand, the RO readjudication of the Veteran's claim for an increased disability rating for postoperative torn rotator cuff, right shoulder, should include the issue of TDIU. Furthermore, the Board notes that the Veteran testified that he has been receiving benefits from the Social Security Administration (SSA) since 2007. However, an inquiry into benefits from the SSA dated in December 2007 indicated that the Veteran had been denied benefits. The Board notes that the Veteran is in receipt of a nonservice connected pension from VA since 2007; the Board wonders if that is what the Veteran was referring to when he mentioned receiving disability benefits. Nevertheless, on remand, a new inquiry into benefits from the SSA should be done to determine whether the Veteran is in fact receiving SSA disability benefits. If the Veteran is receiving SSA benefits, those records need to be obtained as they may pertain to the severity of his right shoulder disability. With regards to both claims, the Board notes that the Veteran testified about the he continued to be treated at the Dallas VA Medical Center (VAMC). Only records dated through January 2008 are in the claims file. On remand, updated treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain the Veteran's VA treatment records from the Dallas VAMC dated since January 2008. 2. The AOJ should contact the Veteran and obtain details of any SSA disability claim, past or present. If the Veteran has been awarded benefits, the AOJ should then contact SSA and obtain any records that are potentially related to the Veteran's right shoulder disorder. 3. The AOJ should thereafter schedule the Veteran for a VA examination by a medical professional with appropriate expertise to determine the current level of disability attributable to the Veteran's right shoulder disability. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A complete rationale should be given for all opinions and conclusions expressed. All indicated tests should be conducted and those reports should be incorporated into the examination and associated with the claims file. The examiner should specifically undertake range of motion studies of the right shoulder and comment on the degree of disability due to functional losses such as pain, weakness, etc. All functional losses should be equated to additional loss of motion (beyond that shown clinically). The examiner should also provide an opinion as to whether there is any impairment of the humerus, to include loss of head, nonunion, fibrous union, recurrent dislocation at scapulohumeral joint, and malunion; any impairment of the clavicle or scapula, to include dislocation, nonunion, and malunion; and whether there is ankylosis of scapulohumeral articulation. The examiner should also describe all current manifestations associated with the Veteran's right shoulder scar. The examiner should comment on whether the Veteran's postoperative torn rotator cuff, right shoulder, in and of itself, precludes him from obtaining or maintaining gainful employment. Rationale for that opinion should be provided. The AOJ should ensure that the examination report comply with this remand and answers the questions presented in the AOJ's examination request. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2009). 3. After undertaking any other development deemed appropriate, the AOJ should consider the issues on appeal, to include entitlement to TDIU in connection with his increased rating claim, in light of all information or evidence received. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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 Supp. 2009). _________________________________________________ DAVID L. WIGHT Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).