Citation Nr: 1014375 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 08-31 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected tendinosis of the infraspinatus tendon of the left shoulder. 2. Entitlement to an initial evaluation in excess of 20 percent for service-connected postoperative tendinosis of the infraspinatus tendon of the right shoulder. 3. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to March 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 As an initial matter, the Board observes that in September 2009 and December 2009, the Veteran asserted that she is unable to obtain a job due to her bilateral shoulder disabilities. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part of the claim for benefits for the underlying disability. Id. In this case, the Board concludes that the evidence of record reasonably raises the question of whether the Veteran is unemployable due to her service-connected bilateral shoulder disabilities. The Veteran contends that her bilateral shoulder disability prevents her from engaging in work that she has trained to do while she was in the military and that her disabilities have made it extremely difficult for her to attend college to find a position with less labor. In addition, the March 2009 VA examination revealed that the Veteran's right shoulder severely limited most activities of daily living and the left shoulder had a moderate effect on most activities of daily living. As such, the issue is properly before the Board. In October 2009, the Veteran notified the Board of treatment records that are not associated with the record. She asserted that she received treatment for her bilateral shoulders between August 2008 and September 2009 from the University Hospital in Columbia, Missouri and from the VA Medical Center (VAMC) in Columbia, Missouri. She filled out and signed a VA Form for Authorization and Consent to Release Information for the private treatment records with University Hospital in Columbia, Missouri. Thus, the Board finds that a remand is necessary in order to obtain these records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to obtain any outstanding VA treatment records related to the bilateral shoulder disabilities from the Columbia, Missouri VAMC from August 2008 to the present. 2. The RO should attempt to obtain the Veteran's private treatment records from University Hospital in Columbia, Missouri between August 2008 and September 2009. If the RO is unable to use the September 2009 Authorization and Consent to Release Information Form, the RO must inform the Veteran of this matter and elicit from her the appropriate consent so that VA may obtain the private treatment records. If VA is unsuccessful in obtaining the medical records identified by the Veteran, it must inform her and her representative of this, request her to provide copies of the outstanding medical records and allow her the opportunity to obtain these records. 3. Upon completion of the foregoing, the RO should readjudicate the Veteran's claims of entitlement to an initial increased rating for bilateral shoulder disorders and entitlement to a TDIU, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, the RO should provide the Veteran and her representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. 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). _________________________________________________ John E. Ormond, Jr. 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).