Citation Nr: 1807169 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-14 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a left shoulder dislocation with degenerative joint disease prior to August 18, 2016 and in excess of 20 percent thereafter. 2. Entitlement to an initial rating in excess of 20 percent for a left shoulder disability with impairment of humerus, to include whether a compensable rating is warranted prior to August 18, 2016. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1992 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In an October 2016 rating decision, the RO increased the rating for the left shoulder dislocation to 20 percent, effective August 18, 2016. Since the RO did not assign the maximum disability rating possible, the appeal for higher disability evaluations remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In that same decision, the RO granted service connection and assigned a separate 20 percent rating for a left shoulder disability with impairment of the humerus, effective August 18, 2016. The Board has taken jurisdiction of that claim also as the Veteran's claim of increased rating for his left shoulder disability contemplated all manifestations of the left shoulder. The Veteran testified at a Board hearing in March 2017 before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. Testimony at the March 2017 Board hearing raised the issue of TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). Thus, the issues are as noted on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During the Veteran's March 2017 Board hearing, he testified that his shoulder disability has worsened since his previous examination in September 2016. Thus, a new examination is necessary. Additionally, the Veteran reported that his disability has prevented him from obtaining gainful employment. On remand, he should be asked to complete a VA Form 21-8940 (Application for TDIU) and provide related employment details. The TDIU claim is inextricably intertwined with the increased rating claims and adjudication of that issue will be deferred until the issues of increased rating are decided. The Veteran also stated that he has moved from Louisiana to Texas. On remand, the RO should identify and obtain any pertinent medical records since March 2011, the Veteran has seen regarding his shoulder disability. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file, with assistance from the Veteran, any VA treatment and private treatment records from March 2011 to the present. 2. Provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 3. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current severity of his left shoulder disability. Copies of all pertinent records should be made available to the examiner for review. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the left shoulder disability. The appropriate DBQs should be filled out for this purpose, if possible. The examiner should specifically test the Veteran's left shoulder ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the Veteran is unable to complete any tests listed in the DBQ, the examiner should clearly explain why this is so. The examiner(s) should attempt to estimate additional functional loss of the left shoulder due to repetitive use and/or flare-ups. In making this determination the examiner is specifically directed to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding the Veteran's flares by any available means, to include the Veteran's lay statements and all other evidence of record. 4. Thereafter, readjudicate the Veteran's claims, to include whether a compensable rating is warranted for the impairment of the left humerus prior to August 18, 2016. If any benefit sought on appeal remains denied, provide the Veteran and her representative with a supplemental statement of the case and an opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran 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 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). _________________________________________________ M. E. LARKIN 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).