Citation Nr: 1753857 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 13-33 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left shoulder sprain. 2. Entitlement to a total evaluation based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Michael J. Kelley, Esquire WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1972 to October 1973, with subsequent years of inactive service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for the Veteran's left shoulder strain and assigned an initial noncompensable (zero percent) rating. The Veteran appealed and a February 2016 supplemental statement of the case subsequently granted an increased rating of 10 percent from the date of claim. The Veteran's appeal continues, now seeking a rating in excess of 10 percent for left shoulder strain, to include an inextricably intertwined claim of TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The issues of initial evaluations in excess of 10 percent each for a left forearm scar, and a painful left forearm laceration scar were finally adjudicated by the Board previously in June 2016 and are no longer subject to appeal at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A remand by the Court of Veterans Appeals or by the Board confers on the Veteran, "as a matter of law, the right to compliance with the remand orders." Stegall v. West 11 Vet. App. 268, 271 (1998). In this case, the Board remanded the issues at hand for a VA shoulder examination in June 2016. The record reflects that a request for examination was initiated thereafter on July 7, 2016, but appears to have been internally cancelled the following day. There is no evidence of record that a VA shoulder examination was ultimately scheduled, or that the Veteran received any notice thereof, subsequent to the June 2016 remand. Instead, correspondence to the Veteran dated July 3, 2017 notes that the examination required by the Board was cancelled by the Veteran due to transportation problems. However, the cancelled VA examination, as highlighted by the RO/AOJ in the Compensation and Pension Exam Inquiry within the claims file, was scheduled in December 2015, which is prior to the Board's June 2016 remand order and therefore has no bearing on compliance with the current remand instruction. The Veteran must be afforded the opportunity for an adequate VA examination to ascertain the current extent of his left shoulder disability, and must be so scheduled. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki. Here, the Board previously determined that TDIU had been raised by the record. BVA decision, June 2016. As such, TDIU will now be considered as intertwined with the existing increased rating claim and is remanded as such. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his left shoulder disability. Associate a copy of the notification letter informing the Veteran of his examination appointment date with the claims file. The electronic claims file should be made available to the examiner for review. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner should report the results of range of motion testing and note the point at which the Veteran experiences pain. The examiner should also comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's report should include a description of the above factors that pertain to functional loss that develops on repetitive use or during flare-up. The examiner should also describe any other associated deformity or functional impairment of the left shoulder, and indicate whether there is ankylosis. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer a requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Then, after undertaking any additional development that is deemed warranted, adjudicate the issue of entitlement to TDIU and readjudicate the issue of entitlement to an increased evaluation for the left shoulder disability, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond. 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. §§ 5109B, 7112 (2012). _________________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).