Citation Nr: 1325735 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 07-37 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating higher than 20 percent prior to July 7, 2011, and higher than 30 percent as of July 7, 2011, for limitation of motion of the right shoulder. 2. Entitlement to an initial rating higher than 20 percent for limitation of motion of the left shoulder. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Carolyn J. Kerr, Agent ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran had active military service from April 1953 to April 1956. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2011, the Board issued a decision granting a 20 percent rating for limitation of the right shoulder effective April 13, 2006, the date of VA surgery causing a burn scar that lead to such limitation, and a 30 percent rating as of July 7, 2011, the date of a VA examination showing that the right shoulder had additional limitation of motion. The Board also granted a 20 percent rating for limitation of motion of the left shoulder effective July 7, 2011, the date of the VA orthopedic examination of the shoulders. The Board granted these separate ratings based on its finding that they were associated with the Veteran's service-connected residual burn scar on the posterior thorax, the evaluation of which was the issue initially certified to the Board. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury can be combined so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition). The Board denied a rating higher than 20 percent for the residual burn scar itself. The Veteran appealed the Board's October 2011 decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In a December 2012 Order, the Court granted a Joint Motion for Remand, vacating the portion of the Board's decision denying ratings exceeding those now assigned for the Veteran's bilateral shoulder disorders. The Joint Motion clarified that he did not appeal the aspect of the Board's decision denying a rating higher than 20 percent for the residual burn scar. However, the parties noted that a July 2011 rating decision of the RO already had granted separate 20 percent ratings for the shoulders, and that the RO had assigned an effective date of April 13, 2006, for the left shoulder rating, as opposed to the July 7, 2011, effective date assigned by the Board. Further, the parties agreed that the evaluation of the Veteran's service-connected residual burn scar and associated bilateral shoulder disorders raised the derivative issue of his possible entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that the issue of entitlement to a TDIU is "part and parcel" of the evaluation of a disability when unemployability as a result of such disability has been raised by the claimant or by the record); see also 38 C.F.R. §§ 3.340, 4.16 (2012). Accordingly, the Joint Motion instructed the Board to reconcile its decision with the July 2011 rating decision, in particular with regards to the effective date of the 20 percent rating assigned the left shoulder disorder, and to address derivative entitlement to a TDIU. Concerning the effective date of the 20 percent rating assigned for the Veteran's left shoulder disorder, the July 7, 2011 effective date assigned by the Board was void at the outset (ab initio). The April 13, 2006 effective date that already had been assigned in the RO's contemporaneously issued July 2011 rating decision is clearly more favorable, and indeed is the earliest effective date possible as the Veteran's service-connected limitation of motion of the shoulder was granted on the basis of that surgery under 38 U.S.C.A. § 1151 (West 2002). Because this effective date is more favorable, and because the Veteran did not appeal it, the Board did not have jurisdiction to assign a later effective date. Indeed, a November 2011 rating decision, which effectuated the Board's assignment of a 30 percent rating for the Veteran's right shoulder disorder, noted that it would not address the 20 percent ratings assigned by the Board since they already had been granted in the earlier rating decision. Moreover, the code sheet attached to this decision confirms that the April 13, 2006 effective date has been retained for the 20 percent rating assigned the left shoulder disorder. In short, the RO properly disregarded the Board's assignment of a later effective date for the evaluation of the left shoulder disorder. Accordingly, further action on this issue is unnecessary. But the other claims still at issue require further development before being decided on appeal, so the Board is remanding these remaining claims to the RO. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND The VA examination reports from during the pendency of these claims do not include opinions as to the impact of the Veteran's service-connected disabilities on his ability to work - meaning his ability to obtain and maintain employment that could be considered substantially gainful versus just marginal in comparison. He has a number of disorders that have not been determined to be service connected, including ataxia, tremors, arthralgia of the knees, and coronary artery disease, which complicates the issue of whether his service-connected disabilities alone render him unemployable. See 38 C.F.R. §§ 3.340, 4.16 (2012). Thus, a VA examination and opinion are needed so the Board can make an informed decision on this issue. Moreover, a VA examination will enable the Board to evaluate the current severity of his bilateral shoulder disorders. See 38 C.F.R. § 3.327(a) (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Accordingly, these claims are REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records dating from July 2011 forward and associate them with the file. 2. Schedule the Veteran for one or more VA examinations of his service-connected burn scar residuals, bilateral shoulder disorders, and low back disorder. The entire claims file, including a copy of this REMAND, must be made available to the examiner for review prior to the examination. The examiner must indicate in the examination report that the claims file has been reviewed. The examiner should record all pertinent clinical findings and perform any necessary tests and studies. After examining the Veteran and reviewing the claims file, the examiner should render an opinion as to whether the Veteran's service-connected disabilities, by themselves or in combination, are sufficiently disabling as to prevent him from obtaining or maintaining employment that could be considered substantially gainful versus just marginal in comparison, without regard to his advancing age and disabilities that are not service connected. The examiner must take into account the Veteran's prior work history, level of education, and skills training in determining whether he would be able to engage in more than marginal employment within the restrictions imposed by his service-connected disabilities. A complete explanation must be provided in support of the opinion. 3. Then readjudicate the claims for higher ratings for the Veteran's bilateral shoulder disorders and the derivative claim for a TDIU, in light of the examiner's opinion and any other additional evidence obtained. If the claims continue to be denied, send the Veteran and his representative another Supplemental Statement of the Case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. He is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). These claims 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. 2012). _________________________________________________ KEITH W. ALLEN 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) (2012).