Citation Nr: 21000314 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-01 103 DATE: January 5, 2021 REMANDED 1. Entitlement to a rating in excess of 40 percent for residuals of a right shoulder injury is remanded. 2. Entitlement to increases in the (20 percent prior to April 17, 2013, and 40 percent, combined, from that date) staged ratings assigned for a left shoulder disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 1990 to January 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2006 and May 2007 rating decisions. In September 2012, a Travel Board hearing was held before the undersigned; a transcript is in the record. In February 2013, these matters were remanded for additional development. An April 2013 rating decision awarded a separate 20 percent rating for recurrent dislocation of the left scapulohumeral joint (resulting in a combined 40 percent rating for the left shoulder), effective April 17, 2013. The issue is characterized to reflect that staged ratings are assigned, and that both “stages” are on appeal. In September 2015, March 2016, and January 2017 these matters were again remanded for additional development. A November Board 2017 decision dismissed the appeals seeking increases in the ratings assigned for the right and left shoulder disabilities (finding that the Veteran abandoned them by failing to submit requested authorizations for self-identified critical evidence). He appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a November 2018 JMR by the parties. A November 2018 CAVC Order remanded the matter for compliance with the JMR instructions. In July 2019, the Board remanded the matters for additional development in compliance with the JMR instructions. In September 2020, the matter was again remanded to afford the Veteran the one-year period for response provided under 38 C.F.R. § 3.158(a). 1., 2. Entitlement to increases in the ratings assigned for right and left shoulder disabilities In the November 2018 JMR, the parties agreed that vacatur and remand were warranted for the Board to provide an adequate statement of reasons or bases to support its finding that the Veteran abandoned his claims under 38 C.F.R. § 3.158(a) or adjudicate his claims on the merits based on the existing evidence of record. In July 2019, the Board remanded these matters for additional development, namely to ask the Veteran to submit authorizations for VA to secure for the record complete Office of Worker’s Compensation Programs (OWCP) records for his on-the-job injuries and complete records of treatment from Drs. Harold Pye and Samuel Chmell (as he continues to report ongoing non-VA shoulder treatment and medication). See April 2017 VA examination report. The Board noted that such records are pertinent as the disability picture for the period under consideration is incomplete; the self-identified records would provide a more comprehensive disability picture (that apparently was fluctuating throughout the period on appeal). The Veteran was reminded that a governing regulation (38 C.F.R. § 3.158(a)) provides that where evidence or information sought by VA in connection with a claim for VA benefits is not received within a year following the request the claim will be considered abandoned. In November 2019 (pursuant to the Board’s July 2019 remand directive), AOJ correspondence to the Veteran directed him to “Complete and return the enclosed VA Form 21-4142…and VA Form 21-4142a, so that we can obtain private treatment records on your behalf. You may want to obtain and send us the records yourself, if possible.” In July 2020 correspondence to the Veteran, AOJ directed him to submit VA Forms 21-4142 and 21-4142a regarding OWCP records. In September 2020, the Board remanded the matters to afford the Veteran the one-year period for response per provided under 38 C.F.R. § 3.158(a) associated with the AOJ’s November 2019 and July 2020 requests. In September 25, 2020 correspondence (pursuant to the Board’s September 2020 remand), the AOJ reminded the Veteran that he has until July 2, 2021 to submit the identifying information and releases for complete clinical records of all evaluations and treatment (including specifically records from Drs. Harold Pye and Samuel Chmell) for his shoulder disabilities. To date, he has not provided the requested authorizations (or complete copies of the records sought). His noncompliance frustrates VA’s efforts to obtain self-identified records which are critical to proper adjudication of these claims. As he has not provided the information sought, has not waived the one-year period for response (provided under 38 C.F.R. § 3.158(a)) associated with the AOJ’s November 2019 and July 2020 requests, and has not indicated that he does not intend to respond, and the case was returned to the Board prior to the expiration of the “until July 2, 2021) period which the AOJ advised him was available) this matter was prematurely returned to the Board, and a remand to afford him the remainder of the full year to respond (and for any further action based on his response) is necessary. The Veteran is advised that he may waive the remainder of the period afforded for response by indicating in writing that he will not provide the authorizations sought. Expeditious handling of his claims is dependent on the promptness of his response. The matters are REMANDED for the following: 1. Secure for the record complete updated (i.e., any not already in the record) clinical records of all VA evaluations and treatment the Veteran has received for his right and left shoulder disabilities. Ask the Veteran to provide the identifying information and releases, including specifically both VA Forms 21-4142 and 4142a, necessary for VA to secure the following: - Complete OWCP records pertaining TO HIS on-the-job injuries (detailed in March 2013 correspondence), including specifically the dates of the incidents and the associated claim numbers; - Complete clinical records of all evaluations and treatment he has received for his right and left shoulder disabilities since April 2012 (including specifically records from Drs. Harold Pye and Samuel Chmell). Remind the Veteran that he has until July 2, 2021 to submit the identifying information and releases. Afford him opportunity to respond to that date (or state in writing that he will not submit the authorizations, and waives the remainder of the period for response). If he complies with the request for identifying information and authorizations, secure for the record copies of the complete records from all providers/sources identified. If any records requested are unavailable, the reason must be explained in the record. If a private provider does not respond to a VA request for records, the Veteran must be so advised, and also advised that ultimately it is his responsibility to ensure that private records are received. 2. Do not proceed with any additional development suggested by the record unless or until the Veteran fully complies with the request or the period for response has expired (or expressly indicates he will not cooperate and waives the remainder of the one-year period). If he does not respond to the request for identifying information and releases within a year (or responds including prior to the expiration of the period AOJ informed him he is being afforded indicating he will not cooperate), the claims should be further processed under 38 C.F.R. § 3.158(a). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.