Citation Nr: 21066068 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-16 928 DATE: October 28, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative joint disease acromioclavicular joint osteoarthritis s/p rotator cuff repair with scar, right shoulder is remanded. Entitlement to a disability rating in excess of 30 percent for COPD, status post infectious reactive airway disease is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1970 to January 1996. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In March 2020, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease acromioclavicular joint osteoarthritis s/p rotator cuff repair with scar, right shoulder is remanded. 2. Entitlement to a disability rating in excess of 30 percent for COPD, status post infectious reactive airway disease is remanded. The Board remanded the issues in March 2020 because the Veteran at his July 2019 Board hearing said he was receiving treatment for his right shoulder and COPD from a private physician at the time. No additional private medical records have been added to the file since then. Although the required two attempts by the RO to get release forms or the outstanding private medical records were sent to the Veteran's representative, they were returned as undeliverable. In September 2020, the Veteran's representative sent a letter to VA explaining she no longer worked for the law firm representing the Veteran. In November 2020, the Veteran submitted a signed Power of Attorney form for his new representative, with instructions to send correspondence to the new attorney at the firm's New York office, not their DC office. Review of the file shows that no request for private medical records or a release form has yet been sent to the Veteran's new representative at the New York office. As a courtesy, the Board is remanding this case to give the Veteran another opportunity to submit recent private treatment records for his right shoulder disability and COPD. 3. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim of entitlement to TDIU is inextricably intertwined with the issues of entitlement to increased ratings for a right shoulder disability and COPD as the outcomes of those claims may affect his eligibility for TDIU. Therefore, the Board finds that the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records related to the Veteran's right shoulder and COPD disabilities and associate those records with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any private physician who has provided treatment for the Veteran's service-connected right shoulder and COPD disabilities. Send simultaneous copies of the requests to the Veteran and to his new attorney representative at the firm's office in New York. Make two requests for the authorized records from any physician identified by the Veteran, unless it is clear after the first request that a second request would be futile. 3. If new private treatment records for the Veteran's right shoulder disability and/ or COPD are received, add them to the C-file and send the updated file to the most recent VA examiner of record for the shoulder disability and COPD for addendum reports. The VA examiner MUST indicate that the recent treatment records were reviewed prior to updating the medical reports. New examinations should only be scheduled with the Veteran if the examiner and/ or the Veteran feel it is necessary. (Continued on the next page) 4. The Veteran and his representative should be sent a VCAA notice letter for the TDIU component of his increased evaluation claim. This letter should notify the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. 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.