Citation Nr: 1804686 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-05 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an initial rating greater than 20 percent for degenerative disc disease (DDD) of the lumbar spine. 3. Entitlement to an increased rating greater than 20 percent for residuals of left shoulder trauma, to include impingement with intraclavicular spurring. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 through August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Board remanded the above-listed issues for further evidentiary development. As is discussed further below, although that development was completed, additional development is deemed necessary. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. In the present case, the Veteran submitted an application for TDIU in October 2017. However, the Veteran did not allege in the claim that either his back or shoulder disabilities, the disabilities subject of this appeal, cause him to be unemployable. Rather, he listed other disabilities as causing his unemployability. As such, the Board does not consider that the issue of entitlement to TDIU is part and parcel of the increased rating claims subject of this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND An additional remand is required in this case for the issues on appeal to ensure there is a complete record upon which to decide the Veteran's. In October 2017, evidence was received that the Veteran applied for disability benefits through the Social Security Agency (SSA). He listed obstructive sleep apnea, left shoulder injury, and low back injury, amongst other disabilities, as the basis of his claim. A letter from SSA granting the Veteran disability benefits effective October 2017 was also received. In May 2017, the RO requested the Veteran's medical records from SSA. In June 2017, SSA responded that no such medical records existed. The RO requested the Veteran's medical records from SSA a second time in October 2017; some medical records were received. Unfortunately, the records received from SSA were incomplete. The RO again requested all of the Veteran's medical records from SSA in December 2017. It does not appear that any such records have been associated with the claim file and there is no indication the records are unobtainable. Additionally, the April 2017 Board remand directives instructed the RO to review the February 2017 VA examinations and ensure they were compliant with the Court of Appeals for Veterans Claims (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016). The record does not indicate that this review was ever undertaken. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claim file all relevant VA treatment records from the Carl Vinson VA Medical Center and all associated outpatient clinics from October 2017 to the present. 2. Obtain any records from SSA, to include any award of disability benefits and any underlying records used in reaching the determination. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if the records are not available. 3. Review the February 2017 VA examinations related to the Veteran's service-connected back and left shoulder disabilities. Ensure that the opinions comply with the recent United States Court of Appeals for Veterans Claims' (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016). 4. After completing the above and any other development deemed necessary, readjudicate the remanded issue. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all matters 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). _________________________________________________ E. I VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).