Citation Nr: 1756926 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-00 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a non-initial rating in excess of 20 percent for right glenoid labral tear, partial superior labral tear, traumatic arthritis, and history of superior labrum anterior to posterior (SLAP) repair of the right shoulder (hereinafter a "right shoulder disability"). 2. Entitlement to an extension of temporary total rating evaluation beyond January 1, 2011, based on a need for convalescence following right shoulder surgery, pursuant to 38 C.F.R. § 4.30 (2017). 3. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Veteran represented by: Karl A. Kazmierczak, Attorney ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1974 to December 1977. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a February 2011 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was previously before the Board in March 2016. At that time, the Board remanded the claim for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regarding the Veteran's service-connected right shoulder disability, the Board finds that the evidence of record since the most recent VA examination reflects a potential worsening of the Veteran's condition, such that a new VA examination is warranted. Additionally, relevant ongoing medical records should also be requested. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2. Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Regarding the TDIU issue, the Board notes that this issue is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). In that regard, the Veteran asserts that his right shoulder disability is the main reason that he has been unemployed. Additionally, the issue of entitlement to TDIU has not been considered on an extraschedular basis under 38 C.F.R. § 4.16(b). Here there is evidence that the Veteran may have been unemployable during the appeal period, due to service-connected disabilities. Hence, a determination on the claim for a TDIU should be deferred pending final dispositions of the claim currently on appeal. The claim for a temporary total evaluation under 38 C.F.R. § 4.30 based on a need for convalescence following surgery for the Veteran's right shoulder hinges, in part, on the Veteran's increased rating evaluation for his right shoulder. 38 C.F.R. § 4.30. Thus, the outcome of the increased rating issue will significantly impact the outcome of the claim for a temporary total evaluation under 38 C.F.R. § 4.30. Accordingly, the issue of entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 based on a need for convalescence following surgery, after January 1, 2011, for the Veteran's right shoulder must be deferred pending resolution of the claim of increased rating for a right shoulder disability. See Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error); Harris, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Although the Board regrets the additional delay due to this remand, it finds that it is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain all outstanding VA treatment records, and any private treatment records related to his right shoulder disability. 2. Schedule the Veteran for a VA examination to address the claim of entitlement to an increased rating for right shoulder disability. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. The examiner should report all signs and symptoms necessary for evaluating the Veteran's disability under the Schedule for Rating Disabilities, including the frequency, severity, and duration of such symptoms. The examiner should provide the range of motion in degrees for the Veteran's right shoulder. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weigh-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The examiner should also estimate any additional loss of function during periods of flare-up, expressed in degrees of lost motion. Such estimate can be based on the Veteran's description of his limitations during such periods, so that an estimate should be provided, if at all possible, even in the absence of direct observation by the examiner. The examiner is advised that the Veteran is competent to report limitation during flare-ups. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. In addition to objective test results, the examiner should fully describe the functional effects caused by the right shoulder disability, in the final report of the evaluation, including, specifically, the effect of the Veteran's right shoulder disability on his employability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review. 3. After undertaking any appropriate development, adjudicate the issue of entitlement to a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) (to include referral of the claim to VA's Director of Compensation for extraschedular consideration, if appropriate). 4. Thereafter, the AOJ should review the opinion to ensure that it is responsive and in compliance with the directives of this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 5. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claims based on the entirety of the evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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).