Citation Nr: 21062458 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-24 806 DATE: October 7, 2021 REMANDED Entitlement to a compensable initial rating for a left shoulder scar prior to February 3, 2017 is remanded. Entitlement to an initial rating in excess of 10 percent for a left shoulder scar since February 3, 2017 is remanded. Entitlement to a compensable initial rating for right wrist scars prior to February 3, 2017 is remanded. Entitlement to an initial rating in excess of 10 percent for right wrist scars since February 3, 2017 is remanded. Entitlement to a rating in excess of 10 percent for residuals of a left ankle fracture (left ankle disability) is remanded. Entitlement to a rating in excess of 20 percent for left shoulder status post osteotomy of the left distal clavicle (left shoulder disability) is remanded. Entitlement to a rating in excess of 10 percent for status post right scaphoid open reduction and internal fixation (right wrist disability) is remanded. Entitlement to a temporary total rating based (TTR) based on convalescence for a November 26, 2014 right wrist surgery is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 1992 to May 1999. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were last before the Board in February 2020, when they were remanded for additional development. The Veteran was in receipt of a temporary total rating (TTR) for his left shoulder from March 31, 2016 until June 1, 2016 and for his left ankle from August 3, 2018 until October 1, 2018. An increased rating for the Veteran's left shoulder and left ankle are not warranted for the respective TTR periods as he was already in receipt of the maximum rating. Regarding the TDIU claim, the Veteran has been in receipt of a 100 percent combined schedular rating since December 6, 2019. Thus, entitlement to TDIU for the combined effects of service-connected disabilities is moot from that date. 1. Entitlement to an initial compensable rating for a left shoulder scar prior to February 3, 2017 is remanded. 2. Entitlement to an initial rating in excess of 10 percent for a left shoulder scar since February 3, 2017 is remanded. 3. Entitlement to an initial compensable rating for right wrist scars prior to February 3, 2017 is remanded. 4. Entitlement to an initial rating in excess of 10 percent for right wrist scars since February 3, 2017 is remanded. 5. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. 6. Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. 7. Entitlement to a rating in excess of 10 percent for a right wrist disability is remanded. 8. Entitlement to a TTR based on convalescence for a November 26, 2014 right wrist surgery is remanded. 9. Entitlement to a TDIU is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. In pertinent part, the February 2020 remand directed that the Veteran be provided a VA right wrist examination. While he was provided a VA scar examination to assess his right wrist scars in September 2020, he has not been provided a VA orthopedic wrist examination since January 2020. Accordingly, remand for a VA wrist examination is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The February 2020 remand also directed that the Veteran be provided a VA left shoulder examination. While the Veteran was provided a VA left shoulder examination in September 2020, further clarification is required as the examination report does not contain information regarding the frequency or duration of the Veteran's left shoulder flare-ups. Additionally, while the examination report indicates that the Veteran had pain with range of motion testing, the examiner did not indicate where the pain started or ended. Accordingly, a remand for another VA examination is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the Veteran's TTR claim, while additional evidence concerning the claim was received during the remand, that issue was not addressed in the September 2020 Supplemental Statement of the Case (SSOC). Accordingly, a remand for a SSOC is required. 38 C.F.R. § 19.31 (b)(c) (2020) (stating a SSOC must be issued if additional pertinent evidence is received after a Statement of the Case). The evidence indicates there may be outstanding relevant VA treatment records. VA treatment records from April 29, 2020 and March 8, 2020 indicate that the Veteran was to return for a follow up appointment in May 2020 and July 2020. VA treatment records after April 29, 2020 have not been associated with the claims file. Additionally, a VA treatment record from October 10, 2014 indicates that an August 29, 2014 non-VA care record had been scanned into VistA Imaging. A November 28, 2014 record notes that a November 21, 2014 non-VA record had been scanned into VistA Imaging. A January 23, 2015 record notes that a January 23, 2015 non-VA record from Dr. Bellis had been scanned into VistA Imaging. An April 7, 2017 record indicates that a non-VA record had been scanned into VistA Imaging. An August 11, 2017 record indicates that an August 7, 2017 non-VA record had been scanned into VistA Imaging. A September 26, 2017 record indicates that a September 26, 2017 administrative record had been scanned into VistA Imaging. VA records from January 17, 2019 note that a January 15, 2019 VA computer downtime note and an undated non-VA physical therapy record had been scanned into VistA Imaging. A January 4, 2020 record indicates that an October 30, 2019 orthopedic record from Dr. Callahan had been scanned. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. A June 15, 2019 VA record suggests the Veteran may have applied for Social Security Administration (SSA) disability benefits. To date, the Veteran's SSA records have not been requested or otherwise associated with the claims file. Accordingly, such records should be requested on remand. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Finally, the February 2020 remand directed that the Veteran submit a completed a VA Form 21-8940. While VA requested that he complete a VA Form 21-8940 in a May 2020 letter, the Veteran has not responded. As the claim must be remanded for additional development, on remand the Veteran should be provided another opportunity to submit the requested information. The Veteran is advised that the failure to provide the above requested information could negatively affect his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records as well as the VistA Imaging records referenced in the October 10, 2014, November 28, 2014, January 23, 2015, April 7, 2017, August 11, 2017, September 26, 2017, January 17, 2019, and January 4, 2020 VA record entries. If any requested records are unavailable, the Veteran should be notified of such. 2. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. 3. Ask the Veteran to fully complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to include detailing all education and training as well as all full-time or part-time employment. 4. After the above record development is completed to the extent possible, schedule the Veteran for a VA wrist examination to determine the current nature and severity of his service-connected right wrist disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should elicit relevant information as to the severity, frequency, and duration of the Veteran's flares and ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (d.) State whether the Veteran required a period of convalescence following his November 26, 2014 right wrist hardware removal and, if so, how long of a period of convalescence was required. A complete rationale should be provided for all opinions and conclusions expressed. 5. After the above record development is completed to the extent possible, schedule the Veteran for a VA shoulder examination to determine the current nature and severity of his service-connected left shoulder disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should elicit relevant information as to the severity, frequency, and duration of the Veteran's flares and ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale should be provided for all opinions and conclusions expressed. 6. Thereafter, if the benefits sought on appeal remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.