Citation Nr: 18138396 Decision Date: 09/25/18 Archive Date: 09/25/18 DOCKET NO. 10-41 485 DATE: September 25, 2018 REMANDED Entitlement to service connection for a right shoulder disorder, including as secondary to service-connected degenerative arthritis of the left shoulder is remanded. Entitlement to service connection for a disorder of the legs is remanded. Entitlement to an initial disability rating for adjustment disorder, with mixed anxiety and depression, in excess of 50 percent prior to October 21, 2013 and in excess of 70 percent thereafter, is remanded. Entitlement to an effective date earlier than September 18, 2008 for the grant of service connection for adjustment disorder, with mixed anxiety and depression, is remanded. Entitlement to an effective date earlier than October 21, 2013 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active service from November 1979 to December 1980. The issue of service connection for a disorder of the legs was previously before the Board, and denied, in a March 2013 decision. The Veteran appealed the March 2013 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2014 Order, the Court granted a Joint Motion for Partial Remand (JMR), which vacated and remanded the issue of service connection for a disorder of the legs. Specifically, the parties agreed in the JMR that the Board erred in failing to find that the Veteran’s assertions that he injured his legs and knees while parachuting in service warranted a VA medical examination and opinion. Further, in an October 2014 decision, the Board noted that, as to the right shoulder disability issue, service connection for a right shoulder disability was initially denied in a RO rating decision dated September 2, 2009, and mailed to the Veteran on September 3, 2009. As no Notice of Disagreement (NOD) was subsequently filed, in the April 2011 rating decision, the RO first considered whether new and material evidence had been received to reopen the issue; however, the Board subsequently found that the September 2, 2009 rating decision did not become final as to the issue of service connection for a right shoulder disability because additional evidence was received within one year of the decision. See 38 C.F.R. § 3.156 (b) (2017). As such, the Board did not need to consider whether new and material evidence was received to reopen that issue. Upon review of the record, the Board finds that the issues must be remanded for a full and fair adjudication of his claims. 1. Entitlement to service connection for a right shoulder disorder, including as secondary to service-connected degenerative arthritis of the left shoulder is remanded. The record reflects that pertinent medical records are outstanding. Specifically, the Veteran reported in his November 2017 statement that he may have been seen in a local emergency room for his right shoulder disorder. Because such records, if obtained, could bear on the outcome of the claims remaining on appeal, efforts must be made to procure them. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Additionally, The Court of Appeals for Veterans Claims (Court) has held “that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders.” Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, “the Board itself errs in failing to ensure compliance.” Id. The matter was previously remanded in March 2016 to obtain records and schedule a VA examination. While the Veteran did undergo a new VA examination in October 2017 and a new opinion was provided, the Board finds that the remand instructions, as laid out by the previous remand, were not followed. The examiner was asked to, but did not, take x-rays of the right shoulder. See November 2017 statement. As such, remand is needed in order to ensure compliance with the Board’s previous March 2016 remand. 2. Entitlement to service connection for a disorder of the legs is remanded. The record reflects that pertinent medical records are outstanding. Specifically, the Veteran reported in his November 2017 statement that he may have been seen in a local emergency room for his disorder of the legs. Because such records, if obtained, could bear on the outcome of the claims remaining on appeal, efforts must be made to procure them. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Additionally, The Court of Appeals for Veterans Claims (Court) has held “that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders.” Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, “the Board itself errs in failing to ensure compliance.” Id. The matter was previously remanded in March 2016 to obtain records and schedule a VA examination. While the Veteran did undergo a new VA examination in October 2017 and a new opinion was provided, the Board finds that the remand instructions, as laid out by the previous remand, were not followed. The examiner was asked to, but did not, take x-rays of both legs. See November 2017 statement. As such, remand is needed in order to ensure compliance with the Board’s previous March 2016 remand. Lastly, the Board notes. The October 2017 examiner noted that the Veteran had multiple current disabilities of the leg in one section, but then opined that no leg disability was found. This internal inconsistency further underscores the need for a new examination and etiology opinion. 3. Entitlement to an initial disability rating for adjustment disorder, with mixed anxiety and depression, in excess of 50 percent prior to October 21, 2013 and in excess of 70 percent thereafter, is remanded. The Board also notes that the Veteran’s last examination of record was in October 2013. The Veteran’s July 2018 VA treatment records indicate a possible worsening of symptomatology. Given the evidence of possible increased symptomatology since the Veteran’s last VA examination, the Board finds that a new VA examination is warranted to ascertain the severity of the Veteran’s service-connected psychiatric condition. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). 4. Entitlement to an effective date earlier than September 18, 2008 for the grant of service connection for adjustment disorder with mixed anxiety and depression is remanded. With regard to the appeal of an earlier effective date, there is no evidence in the claims file to indicate that the AOJ issued an SOC or took any action in response to the Veteran’s timely April 3, 2015 NOD with the December 2013 rating decision (the record reflects that the Veteran did not receive notification of the award until April 8, 2014). Therefore, the issue must be remanded to the AOJ to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). 5. Entitlement to an effective date earlier than October 21, 2013 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. With regard to a TDIU prior to October 21, 2013, the outcome may be largely dependent on the effects of the Veteran’s service-connected psychiatric condition during that time and service-connection claims. As that matter is being remanded for clarification of the Veteran’s present and prior symptoms, the further development and readjudication of the PTSD disability may affect the resolution of the TDIU claim. The issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The AOJ must first develop and readjudicate the other claims before readjudicating the TDIU claim. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. Specifically, ask the Veteran to provide releases for relevant records of treatment from any emergency rooms he may have visited to treat his right shoulder disorder and disorder of the legs, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 2. Schedule the Veteran for a VA examination with the appropriate medical examiner, OTHER THAN THE ONE WHO CONDUCTED THE OCTOBER 2017 EXAMINATION to address the nature and etiology of right shoulder disorder. The claims folder must be made available to the examiner for review in connection with the examinations. The examination reports should reflect that the claims file was reviewed, including any newly associated medical records. X-RAYS OF THE RIGHT SHOULDER SHOULD BE TAKEN AND DOCUMENTED. (a) With regard to the right shoulder disorder, the examiner should state whether it is at least as likely as not (a 50 percent probability or more) that such a disability began in service, was caused by active service, or is otherwise related to active service. The examiner should elicit a thorough history from the Veteran regarding the onset and pattern of his symptoms. (b) The examiner should also opine as to whether it is at least as likely as not (a 50 percent probability or more) that such a disability is etiologically related to or aggravated by the Veteran’s service-connected left shoulder disability. The examiner is advised that the Veteran is competent and credible to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The VA examiner should accept as fact that the Veteran underwent several hard parachute landings during in-service jump training. The VA examiner should also accept the Veteran’s statement that on the third jump the main parachute did not inflate, and the subsequent delay in deployment of the reserve parachute resulted in a hard landing causing back and bilateral shoulder, leg, and knee injuries. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for a VA examination with the appropriate medical examiner, OTHER THAN THE ONE WHO CONDUCTED THE OCTOBER 2017 EXAMINATION to address the nature and etiology of the disorder of the legs. The claims folder must be made available to the examiner for review in connection with the examinations. The examination reports should reflect that the claims file was reviewed, including any newly associated medical records. X-RAYS OF BOTH LEGS SHOULD BE TAKEN AND DOCUMENTED. (a) With regard to the disorder of the legs, the examiner should state whether it is at least as likely as not (a 50 percent probability or more) that such a disability began in service, was caused by active service, or is otherwise related to active service. The examiner should elicit a thorough history from the Veteran regarding the onset and pattern of his symptoms. The examiner is advised that the Veteran is competent and credible to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The VA examiner should accept as fact that the Veteran underwent several hard parachute landings during in-service jump training. The VA examiner should also accept the Veteran’s statement that on the third jump the main parachute did not inflate, and the subsequent delay in deployment of the reserve parachute resulted in a hard landing causing back and bilateral shoulder, leg, and knee injuries. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Schedule an examination with the appropriate examiner to determine the current severity of the Veteran’s adjustment disorder, with mixed anxiety and depression. The examination should address all symptoms and occupational and social impairment. The electronic claims file must be available to the examiner, and the examiner must specify in the examination report that these records were reviewed. The examiner is asked to discuss the symptoms of the Veteran’s adjustment disorder, with mixed anxiety and depression throughout the entire appellate period, from September 18, 2008 onwards. 5. Issue a SOC addressing the issue of an effective date earlier than September 18, 2008, for the grant of service connection for adjustment disorder with mixed anxiety and depression. The Veteran and representative should be given the appropriate opportunity to respond to the SOC. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these issues following the issuance of the SOC unless the appeal is perfected by a substantive appeal. 6. The AOJ should also undertake any other development it determines to be warranted. (Continued on the next page)   7. Thereafter, the AOJ must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After any necessary development and readjudication of the increased-rating claim and service-connection claims, readjudicate the TDIU issue remaining on appeal. If any benefit on appeal is not granted issue a supplemental statement of the case as to any and all such issues. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel