Citation Nr: 1802872 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 10-31 859A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for ligamentous injury of the right shoulder status post arthroscopy with debridement. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Army from December 1981 to December 2001. The matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated March 2010 from the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. Jurisdiction has since been transferred to the RO in Columbia, South Carolina. In a March 2014 decision and remand, the Board remanded the claim for entitlement to an increased disability rating in excess of 10 percent for ligamentous injury of the right shoulder status post arthroscopy with debridement for additional development and adjudication. In a February 2017 decision and remand, the Board denied entitlement to an increased disability rating in excess of 10 percent for ligamentous injury of the right shoulder status post arthroscopy with debridement. The Board also remanded the claims for (1) entitlement to increased disability ratings in excess of 10 percent for bilateral knee patellofemoral syndrome and (2) entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran appealed the denial of entitlement to an increased disability rating in excess of 10 percent for ligamentous injury of the right shoulder status post arthroscopy with debridement to the Court of Appeals for Veterans Claims (CAVC). Counsel for the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Partial Remand (JMPR), leaving undisturbed the claims that had been remanded. An Order of the Court dated October 16, 2017 granted the motion and remanded the case to the Board. The Board notes that the development ordered in the February 2017 decision and remand pertaining to the issues of (1) entitlement to increased disability ratings in excess of 10 percent for bilateral knee patellofemoral syndrome and (2) entitlement to a total disability rating based on individual unemployability (TDIU) has not yet been completed. Thus, those claims have not been returned to the Board for adjudication and the issues will not be discussed at this time. The Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge in November 2013. A transcript of the hearing is associated with the claims file. The Board also notes that in August 2015, the Veteran submitted a notice of disagreement with the effective date assigned for his service-connected coronary artery disorder. To date, a Statement of the Case has not been issued readjudicating this issue. As this matter is under development at the RO, the Board will not address it at this time. The appeal is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Although further delay is regrettable, the Board finds that the claim on appeal must be remanded for further development. The parties agreed in the October 2017 JMPR that the Board's February 2017 denial of the Veteran's claim for entitlement to an increased disability rating in excess of 10 percent for ligamentous injury of the right shoulder status post arthroscopy with debridement, should be vacated because the claim had been adjudicated without VA's first obtaining and associating with the claims file the Veteran's potentially relevant Social Security Administration (SSA) records. See October 2017 JMPR. The parties agreed that the Board's February 2017 finding that SSA records were not relevant to the right shoulder disability was incongruent with its other finding that the SSA records were potentially relevant to the claims being remanded. See id. Thus, and in light of the Court's October 2017 Order granting the parties' JMPR, the claim for entitlement to an increased disability rating in excess of 10 percent for ligamentous injury of the right shoulder status post arthroscopy with debridement is remanded to obtain the Veteran's outstanding SSA records. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide him and his representative with a Supplemental Statement of the Case (SSOC) and allow him an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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 (West 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs