Citation Nr: 19108572
Decision Date: 02/06/19	Archive Date: 02/05/19

DOCKET NO. 13-33 901
DATE:	February 6, 2019

REMANDED

Entitlement to a temporary total rating under 38 C.F.R. § 4.30 based on convalescence following right shoulder surgery in September 2012.

REASONS FOR REMAND

The Veteran had active service from May 2006 to September 2009.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated January 2013.

The Veteran underwent right shoulder surgery in September 2012.  He seeks a temporary total rating under 38 C.F.R. § 4.30 based on convalescence.  In October 2017, the Board remanded this matter to the RO for additional development, namely obtaining the Veteran’s VA treatment records relating to his right shoulder surgery.  

In September 2018, the RO associated with the electronic claims file the Veteran’s VA treatment records from March 2012 to May 2018.  The RO then denied a temporary total rating in a supplemental statement of the case dated October 2018.  The appeal has since been returned to the Board.  

The Board finds there has not been substantial compliance with the October 2017 remand instructions, necessitating further development.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance).

Specifically, a September 5, 2012 VA outpatient surgery nursing note shows the Veteran was discharged from the hospital with written instructions including “copy of MD orders”.  In addition, the immediately preceding VA outpatient visit note is labeled as “scanned note” and states “See Vista Imaging”.  The records do not contain a copy of the “MD orders”.  Given that the immediately preceding VA treatment note indicates the existence of one or more scanned documents labeled as a “scanned note”, it is possible that entry refers to the “copy of MD orders”, which is potentially relevant to the Veteran’s claim. 

The matter is REMANDED for the following action:

Obtain any physician orders (“MD orders”), and the scanned “Vista Imaging” document that are referenced in the Veteran’s September 5, 2012 VA treatment records.

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	D. Leamon, Associate Counsel