Citation Nr: 1613175 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 09-01 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 40% for residuals of a right shoulder injury. 2. Entitlement to increases in the staged (20% prior to April 17, 2013, and 40%, combined, from that date) ratings assigned for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1990 to January 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2006 and May 2007 rating decisions by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, a Travel Board hearing was held before the undersigned; a transcript is in the record. In February 2013, these matters were remanded for additional development. On remand, an April 2013 rating decision awarded a separate 20 percent rating for recurrent dislocation of the left scapulohumeral joint (resulting in a combined rating of 40 percent for the left shoulder), effective April 17, 2013. The issue is characterized to reflect that staged ratings are assigned, and that both "stages" are on appeal. In September 2015, these matters were again remanded for additional development In the February 2013 and September 2015 remands, the Board noted that evidence in the claims file showed that the Veteran submitted an application for benefits for right and left shoulder disabilities to the Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP). A Federal statute and a VA regulation provide that where a person is entitled to compensation from OWCP based upon civilian employment and is also entitled to compensation for the same disability under laws administered by VA, the claimant will elect which benefit to receive since such benefits cannot be paid concurrently. 5 U.S.C.A. § 8116(b) (West 2015); 38 C.F.R. § 3.708(b)(1) (2015). The Agency of Original Jurisdiction (AOJ) was instructed to consider this regulation and inform the Veteran of the election required. Although an October 2015 VA memo referred to this matter, there is nothing in the record to suggest that this has been done. Accordingly, the matter is referred to the AOJ yet again for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the Veteran if action on his part is required. REMAND The Board is well aware these matters were remanded twice before (and regrets the delay in final adjudication that is inherent with a remand). Nonetheless, because there has not been substantial compliance with the previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The September 2015 Board remand noted that the Veteran submitted releases for VA to secure the records from Drs. Harold Pye and Samuel Chmell, as well as treatment records pertaining to his on-the-job injury (maintained by the DOL). The Board further noted that the Veteran had previously submitted releases for VA to obtain records from both named providers and from DOL but that there was no indication that such records were sought. In September 2015 correspondence, the AOJ instructed the Veteran to identify where he worked when he sustained the injury for which he was awarded OWCP benefits, as well as his OWCP claim number; he was also requested to complete and return VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information. In October 2015 correspondence, the Veteran identified the United States Postal Service as his employer and submitted a VA Form 21-4142. He did not provide his OWCP claim number or submit a VA Form 21-4142a. The Court's guidance is clear: if a veteran provides an incomplete response, VA must advise the veteran as to the missing information and provide the veteran with an opportunity to respond. Although an October 2015 supplemental statement of the case (SSOC) noted that the Veteran did not submit a VA Form 21-4142a and did not identify/provide a release for records from his treatment providers, there is no indication in the file that the AOJ advised him that his response was incomplete or afforded him opportunity to complete it. Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the Veteran to submit releases for VA to secure complete records of all treatment he received for his left shoulder from private providers (i.e., any records not already secured), specifically including from Drs. Harold Pye and Samuel Chmell. He should also be asked to provide authorizations for VA to secure all records pertaining to claims (for disability benefits for injuries sustained in the course of Federal employment) he filed with the DOL OWCP. In connection with this development he should be reminded to the provisions of 38 C.F.R. § 3.158. If he responds but the response is incomplete, the AOJ must advise him that his response was incomplete, and afford him opportunity to complete it. The AOJ should secure clinical records of the Veteran's shoulder treatment from all providers. If any records sought are unavailable, the reason must be noted in the record and the Veteran should be so notified. 2. Thereafter, following all additional development deemed necessary, the AOJ should review the record and readjudicate the claims (if he fails to provide all information and releases sought, the claims should be processed under § 3.158). . If either remains denied, the AOJ should issue an appropriate SSOC, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2015).