Citation Nr: 1126044 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 08-12 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent, prior to March 11, 2005, and in excess of 30 percent, from February 9, 2006, for degenerative changes and displacement of the clavicle, left shoulder (left shoulder disability). 2. Entitlement to total disability rating due to individual unemployability (TDIU), to include on an extraschedular basis. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1979 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). In that rating decision, the RO continued the 20 percent rating for the Veteran's left shoulder disability and denied entitlement to a TDIU. During the pendency of the appeal, in a January 2006 rating decision, the RO awarded a temporary total rating (100 percent) for surgical or other treatment necessitating convalescence, under the provisions of 38 C.F.R. § 4.30, effective from March 11, 2005 through April 30, 2005, and assigned a 20 percent rating thereafter. By the way of a February 2008 rating decision, the RO assigned a 30 percent, effective February 9, 2006. In that rating decision, the RO also granted service connection for a surgical scar and assigned an initial 10 percent rating, effective March 11, 2005. The Veteran did not file an appeal to the disability rating assigned, therefore this issue is not in appellate status. As the 30 percent rating assigned during the pendency of this appeal does not represent a total grant of the benefit sought on appeal, the increased rating claim remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In April 2011, the Veteran testified before the undersigned during a Board Travel Board hearing at the RO; a copy of the hearing transcript has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action, on his part, is required. REMAND The Veteran claims that increased ratings for his left shoulder disability and an award of TDIU are warranted, contending that he is unable to work due to his service-connected left shoulder disability. After a review of the record, the Board finds that additional development is needed prior to readjudication of the claims. During the April 2011 hearing, the Veteran testified that he had applied for Social Security Administration (SSA) disability benefits. The Veteran further testified that he has been provided with an examination in associate his claim for SSA claim. A copy of any SSA determination and the underlying records used in making such determination has not been associated with the record. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991). When VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. Thus, the Board finds that VA should obtain and associate with the claims file copies of any SSA disability determination and all records underlying any such determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2010) with respect to requesting records from Federal facilities. In addition, the Veteran testified during the hearing that he has continued to receive VA treatment for his left shoulder disability. The claims file contains VA treatment records dated from August 11, 2003 to October 6, 2003, from August 9, 2004 through September 15, 2004, from January 19, 2006 through February 7, 2008 and dated July 23, 2009 from the Richmond VA Medical Center (VAMC). On remand, VA must obtain all outstanding pertinent medical records from this VAMC. The Veteran also testified that his left shoulder disability had worsened since the most recent examination done in February 2006, and given that the last examination is over five years old, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his right elbow disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Thus, the Board has no discretion and must remand this claim in order to afford the Veteran a new VA examination to determine the current level of severity his left shoulder disability. The Court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The evidence does not contain an explicit opinion as to whether the Veteran's service-connected disability prevents him from obtaining and following a substantial gainful occupation that his education and occupational experience would otherwise qualify him. The Veteran's current percentage ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) (2010). However, VA policy is to grant a TDIU in all cases where service-connected disability precludes gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). However, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). On remand, if the Veteran fails to meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), VA should consider whether referral to VA's Director of C&P is warranted. The Veteran is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. See 38 C.F.R. §§ 3.158 and 3.655 (2010). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding records of evaluation and/or treatment of the Veteran from the Richmond VAMC and associated outpatient clinics, between October 6, 2003 and August 9, 2004, between September 15, 2004 and January 19, 2006, and since February 7, 2008. All records and/or responses received should be associated with the claims file. 2. Request from SSA copies of any determination(s) and all records underlying any such determination(s) submitted or obtained in support of any claim for disability/supplemental income benefits filed by the Veteran, or on his behalf. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. All records and/or responses received should be associated with the claims file. 3. After completion of 1 and 2 above, schedule the Veteran for a VA joints examination to determine the current nature and severity of his service-connected left shoulder disability. The claims file should be reviewed by the examiner prior to the examination. All tests and studies, including x-ray studies deemed helpful by the examiner should be conducted in conjunction with the examination. The claims file, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The Joints examination must be conducted following the protocol in VA's Disability Examination Worksheet Joints (Shoulder, Elbow, Wrist, Hip, Knee, and Ankle) Examination (revised on December 9, 2009). The examination must respond to the instructions contained therein. A goniometer should be used in measuring range of motion, and the examiner is to specifically note its use in the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disability-left shoulder disability and associated surgical scarring-would preclude the Veteran from securing or following a substantially gainful occupation for which his education and occupational experience would otherwise qualify him, either individually or collectively. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner should provide a complete rationale for any opinion provided. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 4. After completing the requested actions, and any additional notification and development deemed warranted, readjudicate the claims for an increased rating for left shoulder disability, and for a TDIU, in light of all pertinent evidence and legal authority. VA should document its consideration of whether (1) "staged rating," pursuant to the Hart v. Mansfield, 21 Vet. App. 505 (2007), (2) referral for an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b), or referral for a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b), is warranted. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The Veteran 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 appeal 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). _________________________________________________ M. R. VAVRINA 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).