Citation Nr: 18150948 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 07-35 579 DATE: November 19, 2018 REMANDED Entitlement to an increased evaluation for post-operative left (minor) shoulder dislocation with traumatic arthritis, rated as 20 percent disabling prior to January 7, 2009, and 30 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from February 1965 to December 1967. This matter come to the Board of Veterans’ Appeals (Board) from a March 2006 rating decision by a Regional Office (RO) for the Department of Veterans Affairs’ (VA). The Veteran testified before the undersigned Veterans Law Judge October 2010 at a Video Conference hearing and a transcript of that hearing has been associated with the claims file. This matter has been previously remanded in December 2010, August 2012, June 2016, and July 2017. 1. Entitlement to an increased evaluation for post-operative left (minor) shoulder dislocation with traumatic arthritis, rated as 20 percent disabling prior to January 7, 2009, and 30 percent thereafter is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A 38 C.F.R. § 3.159. In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). At the October 2010 Board hearing, the Veteran contended that he suffered from constant pain and that his shoulder was tender to palpation and would “pop” on occasion. In addition, he testified that his shoulder was constantly cold due to muscle wasting, which he contended caused pulling on his neck. The Veteran reported that he had problems with his left hand, arm, shoulder, neck and migraine headaches, all of which he associated with his service-connected shoulder disability. The Board found in the December 2010 remand that separate ratings for left elbow, left hand, left wrist, left fingers, neck and headache disorders, as part and parcel of the left shoulder disability, were potentially applicable in this case. The Board requested that the examiner address the likelihood that any such disorders were related to the service-connected left shoulder disability. In its August 2012 decision, the Board granted increased ratings for the Veteran’s claims for left ulnar neuropathy and left ulnar/median/radial neuropathy and remanded the remaining claims on appeal for additional development. The Board noted that a comprehensive VA examination had been requested in the prior Board remand in December 2010 and found that its directives had not been addressed and accordingly remanded to provide the Veteran a comprehensive VA examination. The matter came to the Board again in June 2016 after the Veteran underwent an additional VA examination which complied with several of the Board’s directives from the August 2012 remand, but remanded the matter for additional development and to comply with the remand directives. A November 2016 VA examination was provided and the case was returned to the Board in July 2017, and the Board found the opinion provided by the examiner was conclusory and offered no rationale as to the conclusion that the disorders described by the Veteran were not service connected. The Board once again remanded the matter. As noted, the Veteran was subsequently provided with a VA examination in August 2017 at which time the examiner stated the Veteran did not have the disorders that the Board had requested medical opinions on in the prior remand, specifically disorders of the left elbow, left hand, left wrist, left fingers, neck, and migraine headaches. The Veteran later contacted the VA in January 2018 stating that the C&P examination was inadequate because the examiner failed to elicit information from him regarding conditions he believes to be associated with his left shoulder disability. The Board agrees that the examination was inadequate. The August 2017 examiner was asked in the prior remand to specifically acknowledge that the Veteran was competent to report the onset and continuity of symptomology since service. The examiner indicated there was no history of headaches or migraine listed in the Veteran’s medical history, but the Board notes the symptoms were reported by the Veteran at his hearing in 2010 and in medical records associated with the claim file in November 2005 and in November 2010. The examiner opined in a different section of the exam relating to the Veteran’s TDIU claim that migraines could possibly be caused by an injury to the trapezius muscle and this may also cause pain to the neck. The examiner also indicated that the Veteran’s hand condition was not related to his left shoulder disability and indicated this opinion was due to there being no diagnosis of carpal tunnel syndrome. The Veteran later underwent a VA examination of his hands in April 2018 which indicated he did have carpal tunnel syndrome. As the August 2017 examination includes an opinion without a full acknowledgment of the facts in the case and without acknowledgement that the Veteran is competent to report the onset and continuity of symptomology since service, the examination is inadequate for rating purposes. A medical opinion   based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Board is cognizant that a claim for TDIU is part and parcel of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has expressly asserted that his service connected left shoulder and other service connected disabilities affect his ability to work. For example, in September 2009, the Veteran reported that he was having significant problems at work due to his left shoulder and that he was planning on retiring early and the Veteran has since retired. Subsequent VA examinations have indicated that the Veteran’s shoulder condition would limit his ability to perform any occupations requiring upper extremity involvement. Accordingly, the Board previously took jurisdiction of the TDIU claim. Concerning entitlement to an TDIU the Board finds that any determinations with respect to an increased rating increased evaluation for post-operative left (minor) shoulder dislocation with traumatic arthritis would materially affect a determination regarding TDIU. The Veteran is not currently eligible for TDIU on a schedular basis and as such, it is inextricably intertwined with the increased rating claim being remanded, and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. Obtain any further outstanding VA treatment records.   2. As noted above another VA examination is required to resolve inconsistencies reported in the VA examination of August 2017. Schedule the Veteran for a VA examination to ascertain whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the following conditions, or any other condition, are related to the Veteran’s service-connected left shoulder disability: i. a disorder of the left elbow ii. a disorder of the left hand iii. a disorder of the left wrist iv. a disorder of the left fingers v. a disorder of the neck vi. migraine headaches The claims file must be made available to and reviewed by the examiner. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. In doing so, the examiner must acknowledge that the Veteran is competent to report the onset and continuity of symptomology since service. The examiner should also discuss the rationale for the opinion, whether favorable or unfavorable, if necessary citing to specific evidence of the record. The analysis must rely on the facts of this case, and these include medical finding and results of appropriate testing/examinations as well as the Veteran’s statements regarding the onset and progression of his symptoms. 3. Provide a VA Form 21-8940 to the Veteran and ask him to provide information regarding from 2005 forward. Ask the Veteran to provide IRS tax returns from the year he claims he was unable to secure and maintain substantially gainful employment through 2017 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from the year he claims he was unable to secure and maintain substantially gainful employment through 2017 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated, including the claim for a TDIU. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Middleton, Associate Counsel