Citation Nr: 1333110 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 01-00 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating on an extra-schedular basis for the service-connected residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis, evaluated as 20 percent disabling prior to April 14, 2005, and as 40 percent disabling from that date. 2. Entitlement to an effective date earlier than April 14, 2005, for the grant of an increased rating of 40 percent for the service-connected residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from September 1977 to February 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By a June 2000 decision, the RO denied the issue of entitlement to a disability evaluation greater than 20 percent for the service-connected right shoulder disability. By rating decision in August 2005, the RO increased the right shoulder disability rating to 40 percent, effective April 14, 2005. The Veteran appealed the effective date of this rating. In May 2006, a Board hearing was held before an Acting Veterans Law Judge (AVLJ), and a transcript of that hearing is of record. However, the AVLJ who conducted the hearing has since left the Board. In July 2012, the Board sent a letter to the Veteran informing him of this fact and giving him the opportunity to testify at another hearing. The letter specifically instructed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing. To date, the Veteran has not responded. The Board in February 2008 denied entitlement to a disability rating greater than 20 percent for the right shoulder disability prior to April 14, 2005; and a disability rating greater than 40 percent, effective April 14, 2005. The Board also remanded entitlement to an increased rating on an extra-schedular basis for the right shoulder disability, evaluated as 20 percent disabling prior to April 14, 2005, and as 40 percent disabling from that date. In October 2011 and November 2012 the Board remanded the issue of entitlement to an increased rating on an extra-schedular basis for the right shoulder disability. In addition the Board deferred the claim of entitlement to an effective date earlier than April 14, 2005, for the grant of an increased rating of 40 percent for the service-connected right shoulder disability. 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 In the November 2012 remand the Board directed the agency of original jurisdiction (AOJ) to obtain the Veteran's VA chapter 31 vocational rehabilitation folder, and the April 27, 2009 physical therapy sheet which was referred to but had not been associated with the claims file; and that if additional records were obtained they should be referred to the Director of VA's Compensation and Pension Service (C&P) to determine whether the additional evidence altered the previous determination he had made in May 2012. The VAMC Medical Centers reported the unavailability of the April 27, 2009 physical therapy report and a formal memorandum of unavailability was prepared. The Chapter 31 vocational rehabilitation folder was received; but the issue of extraschedular consideration was not referred to VA's Director of C&P to determine whether the additional evidence altered the prior May 2012 finding. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with Board remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to an effective date earlier than April 14, 2005, for the grant of an increased rating of 40 percent for the service-connected right shoulder disability is inextricably intertwined with the claim for entitlement to an increased rating on an extraschedular basis. Accordingly, further consideration of this issue must be deferred. Accordingly, the case is REMANDED for the following action: 1. The claim files including the additional records obtained subsequent to the November 2012 Board remand (Chapter 31 vocational rehabilitation folder) should be referred to the Director of VA's C&P Service to determine whether the additional evidence alters the Director's May 2012 determination. 2. If the benefit sought on appeal is not fully granted, the AOJ should issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise 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. 2012). ______________________________________________ Mark D. Hindin 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).