Citation Nr: 1808994 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 05-38 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the residuals of right shoulder injury. 2. Entitlement to service connection for the residuals of left shoulder injury. 3. Entitlement to service connection for the residuals of right ankle injury. 4. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to September 26, 2016, to include on an extra-schedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in September 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2009, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Waco, Texas. A copy of the transcript has been associated with the record. In a decision dated in July 2009, the Board denied service connection dental trauma for outpatient treatment purposes; an initial disability rating for PTSD higher than 30 percent prior to September 24, 2008, and higher than 50 percent thereafter; and an initial compensable disability rating for a scar of the lower lip. The Board then remanded the issues of service connection for a left shoulder disorder, and whether new and material evidence has been received to reopen the claims of entitlement to service connection for a right shoulder and right ankle disorder. In September 2009, the Veteran appealed the Board's July 2009 decision to the Court of Appeals for Veterans' Claims (Court). In April 2010 the parties filed a Joint Motion for Remand; and in an Order dated in April 2010 the Court granted the parties' motion and remanded the matter to the Board. In a decision dated in May 2011, the Board again denied service connection dental trauma for outpatient treatment purposes; reopened the claims for service connection for a right ankle and a right shoulder disorder; granted an initial disability rating of 50 percent, but no higher, for PTSD, and granted an initial disability rating of 10 percent for scar of the lower lip. The Board then remanded the claims of service connection for a left shoulder disorder, a right shoulder disorder, and a right ankle disorder for further development, including Workers' Compensation records and a VA examination addendum opinion. In accordance with Rice v. Shinseki, the Board also took jurisdiction over and remanded the issue of entitlement to TDIU in conjunction with the Veteran's appeal for a higher initial rating for his service-connected PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In November 2015, the Board again remanded the bilateral shoulder and right ankle claims for acquisition of Workers' Compensation records and an addendum nexus opinion; and the issue of entitlement to TDIU for extra-schedular consideration by the Director of Compensation and Pension Service. In a rating decision dated in December 2016, the agency of original jurisdiction (AOJ) granted entitlement to TDIU effective September 26, 2016; thus resolving the Veteran's appeal for TDIU from that date. The issues remaining on appeal are entitlement to service connection for right shoulder, left shoulder, and right ankle disorders, and entitlement to TDIU prior to September 26, 2016, to include on an extra-schedular basis. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In its November 2015 remand, the Board requested that the Veteran's 1980's era Workers' Compensation records be obtained, if available. See also May 2011 Board remand. The AOJ requested records from the Union Pacific Railroad, Rail Terminal Services; however, on the April 2013 Application for TDIU, the Veteran reported that he worked at those railroads from 1995/96 to 2003, not during the 1980s when the reported Workers' Compensation treatment for the shoulders took place. Additionally, in a September 2011 application for TDIU, the Veteran noted a previous employer of Gordon Transport. Unfortunately, there is no indication that a request for Workers' Compensation records was ever made to the appropriate government agency for these specific records. See 38 C.F.R. § 3.159(c)(1), which provides that VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, . . . and other non-Federal governmental sources. Therefore, a remand for renewed efforts to obtain the Veteran's 1980's era Workers' Compensation records is needed. Finally, in February 2010 and June 2015, the Veteran underwent VA examinations regarding the issue of service connection for right ankle and bilateral shoulder disorders. The February 2010 examiner predicated his ensuing negative nexus opinion on the premise that there was no evidence that the Veteran was hospitalized or that the right ankle was casted; however, service treatment records (STRs) confirm that the Veteran twisted/everted his right ankle while playing basketball in April 1968 (whereupon the ankle was wrapped and the Veteran was instructed not to walk on it); and that he was hospitalized for injury (sprain) to the right ankle incurred during a March 1, 1969 motor vehicle accident. See STR dated March 7, 1969, noting that the Veteran was still hospitalized due to auto injuries; and an April 3, 1969 Orthopædic Clinic STR, which informs that there was still some right ankle swelling. STRs also confirm that the Veteran sustained a head injury ("cerebral concussion") during the March 1969 in-line-of-duty motor vehicle accident. The Veteran contends that his bilateral shoulder pain commenced with the forward upper body thrust into the vehicle's windshield and dashboard. See Board Hearing Transcript, p. 40; and February 2010 VA examination report, p. 2. Moreover, according to the 2010 and 2015 examination reports, there currently is degenerative joint disease of the right tibiotalar and shoulder joints, but an opinion as to whether the arthritis began in the year after service has not been provided. Additionally, the June 2015 examiner predicated his January 2016 negative medical opinion on the absence of medical records The Veteran should therefore be afforded a new VA examination. On remand the claims file should be updated to include all of the Veteran's VA medical records dated after October 7, 2016. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of where he was employed during the 1980s when the reported Workers' Compensation treatment for the shoulders took place. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file, to include from Gordon Transport. All efforts to obtain these records must be documented in the claims file. If no records are found, make a formal finding for the record, and notify the Veteran. 2. Associat all of the Veteran's VA medical records dated after October 7, 2016 with the claims file. 3. After completion of the above, schedule the Veteran for a new VA examination regarding his claims of service connection for right ankle, right shoulder, and left shoulder disorders. The examiner must discuss the Veteran's pertinent medical history and current complaints and symptoms with the Veteran and document said in the examination report. The claims file must also be reviewed by the examiner. All indicated tests should be done, and all findings reported in detail. The examiner is then requested to a. provide the diagnosis of each right ankle, right shoulder, and left shoulder disorders found on examination or at any other time during the appeal period; and then b. for each current right ankle, left shoulder, and right shoulder disorders identified, opine as to whether it is at least as likely as not (50/50 probability, or greater) that the disorder (i) began during service or manifested to a compensable degree within a year after the Veteran's 1969 separation from active military service; or (ii) is related to an incident/event of active military service. A complete rationale should be provided for all opinions reached. 4. After completion of the above actions, re-adjudicate the claims for service connection for left shoulder, right shoulder, and right ankle disorders, and the issue of TDIU prior to September 26, 2016, to include on an extra-schedular basis. If any of these claims remains denied, issue a supplemental statement of the case and, after allowing the Veteran an opportunity to respond, return the case to the Board. 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). 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). _________________________________________________ C. CRAWFORD 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).