Citation Nr: 21002689 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-02 819 DATE: January 14, 2021 REMANDED Entitlement to a disability evaluation in excess of 20 percent for a left shoulder disability is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) at the (l) rate based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August to December 1991 and from October 2001 to March 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2018, the Veteran testified before the undersigned at a hearing. A transcript of her testimony has been associated with the claims file. Previously, the Board denied the Veteran’s claim for an increased disability evaluation for her left shoulder disability in a March 2019 decision. Thereafter, the Veteran appealed this decision to the Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, however, the parties entered into a Joint Motion for Remand (JMR) in January 2020. Pursuant to the JMR, the parties agreed that the Board erred in its March 2019 decision by failing to provide adequate reasons and bases for its finding that a rating in excess of 20 percent was not warranted. Additionally, the parties agreed that the issue of TDIU had been raised by the record. Pursuant to the terms of the JMR, the Court vacated the March 2019 Board decision and remanded the matter. It now returns to the Board. The Board also notes that in November 2020, the Veteran’s representative submitted an application for TDIU on Form VA 21-8940, as well as an appellate brief indicating that she was also claiming entitlement to SMC based on the need for regular aid and attendance due to bilateral shoulder disabilities. Having carefully considered the evidence of record, including the January 2020 JMR, the Board finds that it cannot reach the merits of these claims and remand is warranted for further development. At the outset, the Board notes that it appears that there are outstanding VA treatment records that have not yet been associated with the claims file. To that end, at her November 2018 hearing, the Veteran testified that she continued to receive treatment at the VA Medical Center in Hampton, Virginia, including an x-ray on her left shoulder on October 19, 2018. However, the most recent VA treatment records in her claims file are from February 21, 2018. As such, remand is warranted to obtain any outstanding VA treatment records and associate them with the claims file. Moreover, the Veteran testified at her hearing that she had recently been approved for disability benefits from the Social Security Administration (SSA). The Board notes that she submitted an August 2018 SSA determination letter indicating that she had not engaged in substantially gainful employment activity since August 8, 2016, and that she had various medical impairments. However, the record does not contain the medical records compiled in connection with the SSA determination, and it does not appear that VA has made any efforts to obtain them thus far. These records are potentially relevant to the claims currently on appeal. Consequently, the RO should attempt to obtain the outstanding relevant SSA records on remand. Additional reasons for remand are explained below. 1. Left shoulder disability In the November 2020 appellate brief submitted by the Veteran’s representative, her attorney argued that the various VA examinations that she had been afforded in June 2014, February 2015, and December 2017 in connection with her claim were inadequate and that VA should obtain an adequate VA examination. The Board notes that in December 2020 the RO afforded her with a new VA shoulder and arm examination. In the corresponding examination report, the December 2020 VA examiner indicated that the Veteran did not report flare-ups in her left shoulder. However, it does not appear that the December 2020 VA examiner reviewed all relevant evidence of record, which suggested that the Veteran did, in fact, suffer from flare-ups of her left shoulder disability. For instance, a November 2020 vocational assessment report noted that she experienced flare-ups at least five times per month that lasted for one to two days, while her TDIU application indicates that she experiences flare-ups if she moves her left shoulder the wrong way, which limit her range of motion. See November 2020 CRC Services TDIU Vocational Assessment Report; November 2020 VA 21-8940. Previous VA examinations are also affirmative for reports of flare-ups. See, e.g., December 2017 VA Examination; June 2014 VA Examination. An examination report that does not consider all relevant evidence of record is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the interest of assembling clear and reliable findings, remand is thus warranted to obtain a VA examination that adequately addresses the Veteran’s reports of flare-ups and their impact on her functional ability. 2. TDIU and SMC(l) As noted in the JMR, the issue of TDIU has been raised by the record. To that end, the Veteran argues that her service-connected disabilities, including her left shoulder disability, have prevented her from obtaining or maintaining a substantially gainful occupation from throughout the appeal period. More specifically, she and her representative have asserted that her disabilities prevent her from reaching overhead, lifting or carrying objects heavier than 10 pounds for longer than brief amounts of times, sitting for longer than 30 minutes, standing longer than five minutes, walking more than five minutes using a cane, or kneeling, stopping, squatting, or climbing. Moreover, they argue that although the Veteran was employed at a fast food restaurant during the appeal period, this employment was merely marginal as her earnings were below the federal poverty threshold. It is the established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. In deciding whether TDIU may be awarded, an adjudicator must first evaluate the severity of the Veteran’s service-connected disabilities. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When this case was returned to the Board, the Veteran was service-connected for her left shoulder disability, right shoulder strain, degenerative changes of the lumbar spine, residuals of a coccyx injury, and trochanteris pain syndrome with a combined disability rating of 60 percent from October 19, 2016. Prior to that, she had a combined disability rating of 40 percent for her left shoulder, right shoulder, and coccyx disabilities from November 24, 2009. Ultimately, the Veteran is only eligible for TDIU pursuant to the schedular criteria in 38 C.F.R. § 4.16(a) based on her combined disability ratings beginning on October 19, 2016. Additionally, the Veteran has argued that she is entitled to SMC at the (l) rate based on the need for regular aid and attendance. In his November 2020 appellate brief, her attorney argues that she regularly requires aid and attendance because her bilateral shoulder disabilities have impaired her ability to complete activities of daily living, such as grooming and cooking, since 2013. Ultimately, the outcome of the Veteran’s TDIU and SMC(l) claims are inextricably intertwined with the claim for an increased disability rating for a left shoulder disability. Indeed, an increased evaluation for a left shoulder disability could significantly impact a decision on the issues of entitlement to SMC for aid and attendance and entitlement to TDIU. As such, remanding these issues for contemporaneous consideration is necessary. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that, where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records. More specifically, obtain any outstanding VA treatment records from the VA Medical Center in Hampton, Virginia, from February 21, 2018, onward. 2. Additionally, obtain any relevant SSA records (i.e., records related to the Veteran’s service-connected disabilities, as well as peripheral vascular disease). If such records are not available, the record should be so documented. The Veteran and his representative are to be notified of any unsuccessful efforts to allow them the opportunity to obtain and submit those records for VA to review. 3. After the development in the first two steps is completed, obtain a new VA examination with respect to the severity of the Veteran’s left shoulder disability. The Veteran’s entire claims file, to include a copy of this remand, should be made available to the examiner and reviewed prior to the examination. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and for weight-bearing and non-weight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the examiner should also inquire as to whether the Veteran has any periods of flare-ups. The examiner’s attention is specifically directed to the Veteran’s November 2020 TDIU application and the accompanying vocational assessment report, as well as the prior December 2017 and June 2014 VA examination reports, which reflect reports of flare-ups. If the Veteran reports any periods of flare-ups, but range of motion testing could not be conducted during a flare-up, state the severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment. If it is not possible to provide a response without resorting to mere speculation, and after doing everything that reasonably should be done to become informed, provide a clear explanation of why a response could not be provided without resorting to mere speculation. (Continued on the next page)   4. After the foregoing development, as well as any other development deemed necessary, has been completed, readjudicate the Veteran’s claims, to include consideration for SMC and for TDIU. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate 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.