Citation Nr: 1643327	
Decision Date: 11/14/16    Archive Date: 12/01/16

DOCKET NO.  09-30 680	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent for postoperative right shoulder (major).

2.  Entitlement to a total disability rating due to individual unemployability due to right shoulder disability (TDIU). 


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel



INTRODUCTION

The Veteran had active service from May 1986 to May 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Board previously remanded this case in January 2012 for further development. In its prior remand, the Board noted that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record.  Here, the Veteran has asserted that he is unable to work on account of his shoulder disability and the record shows that he last worked in 2008 as a delivery driver.  The Board found that although TDIU was separately denied by the RO in February 2010, the issue remained part of the Veteran's increased rating claim.  See Rice, supra.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran is seeking an increased rating for his right shoulder disability.  The Veteran was most recently afforded a VA examination in June 2012, over four years ago.  At the examination, range of motion of the right shoulder was normal with no pain on motion, additional limitations or functional impairment.  However, VA clinical records dated from March 2014 document complaints of right shoulder pain as well as instability and subluxation.  The records also noted that active flexion was limited to 100 degrees.  While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination.  VAOPGCPREC 11-95 (1995).  Accordingly, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's service-connected right shoulder disability.   See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

Moreover, the issue of entitlement to a TDIU is inextricably intertwined with the remaining claim on appeal.  See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991).  As such, this issue must also be returned to the AOJ for further consideration.

Lastly, it appears that the Veteran receives continuing treatment for his right shoulder at the VA.  However, the most recent treatment records associated with the electronic record date from July 2014.  Thus, VA treatment records dated from July 2014 to the present should be obtained.  38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain VA treatment records dated from July 2014 to the present. 

2.  After obtaining all outstanding VA treatment records, the Veteran should be scheduled for an appropriate VA examination to determine the severity of his service-connected right shoulder disorder (major).  

3.  Readjudicate the appeal. 

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 2014).



_________________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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).