Citation Nr: 21067323 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-10 152 DATE: November 3, 2021 REMANDED The increased rating claim for a left shoulder disability, in excess of 20 percent for the period prior to May 9, 2011, and for the period of July 1, 2011 to May 22, 2014; and in excess of 30 percent for the period beginning May 23, 2014, is remanded. The increased rating claim for left shoulder scar, for an initial compensable rating for the period prior to May 23, 2014, and in excess of 10 percent for the period beginning May 23, 2014, is remanded. The increased rating claim for a temporary total rating for a right shoulder disability, status-post right shoulder arthroscopy bursectomy (right shoulder disability) is remanded. The increased, compensable rating claim for right shoulder scars is remanded. The claim of an entitlement to special monthly compensation for regular aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2008 to June 2008; and from September 2008 to November 2008, with additional periods of service in active duty for training (ACTDUTRA) and inactive duty for training (INACTDUTRA) in the United States Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2011 and November 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office in San Juan, in the Commonwealth of Puerto Rico. In a December 2016 decision, the Board, in pertinent part, (1) Denied entitlement to an increased rating, higher than 20 percent, for the left shoulder disability, for the periods prior to May 9, 2011 and from July 1, 2011 to May 22, 2014; (2) Granted an increased, 30 percent disability rating for the left shoulder, for the period beginning May 23, 2014; and (3) Granted an increased, 10 percent disability rating for left shoulder residual scar, for the period beginning May 23, 2014. Subsequently, the Veteran appealed this decision with the United States Court of Appeals for Veterans Claims (Court). In a July 2017 joint motion for partial remand, the parties stipulated that the Board erred when it did not ensure that VA complied with its statutory duty to assist by obtaining or attempting to obtain private treatment records properly identified by the Veteran. Accordingly, in an August 2017 Order, the Court granted this motion for a partial remand, and vacated and remanded the portion of the December 2016 Board decision that denied entitlement to a rating higher than 20 percent for the left shoulder disability, prior to May 9, 2011, and from July 1, 2011 to May 22, 2014; a rating in excess of the increased, 30 percent rating for the left shoulder, for the period beginning May 23, 2014; an initial, compensable rating for left shoulder scar; and a rating in excess of the increased, 10 percent rating for left shoulder scar, beginning May 23, 2014. After these issues returned to the Board for reconsideration in April 2018, the Board remanded these increased rating claims for further, additional developments, consistent with the August 2017 Court Order, which adopted the stipulations from the July 2017 joint motion for partial remand; and also consistent with additional arguments that the Veteran asserted, in support of her claim. In addition to asserting entitlement to an increased, compensable rating for right shoulder scars, the Veteran raises other, additional issues for appellate consideration. See February 2021 Third Party Correspondence. Specifically, these issues include, entitlement to an earlier effective date for the assignment of a 40 percent rating for a right shoulder disability; an increased rating for a sinus condition; and an earlier effective date for an entitlement to Dependents Education Assistance benefits. See February 2021 Third Party Correspondence. The Board clarifies, however, that these issues are currently pending under the modernized appeals system, pursuant to the February 2019 Appeals Modernization Act. Therefore these additional issues are not ripe for a de novo Board review at this time. Nonetheless, the Board regrets further delay, as there are even more additional developments that are required before the Board may render a fully-informed decision on all of the issues that are currently on appeal. 1. Outstanding Medical Records The Veteran's representative (Veteran) asserted that based on documents in the claims file, it is clear that the Veteran served in the Army National Guard prior to February 2008, and served until at least 2009. See March 2018 Third Party Correspondence. Consistent with the Veteran's assertions, the evidence of record accurately indicates that the Veteran served in the Army National Guard prior to February 2008. Specifically, for example, military personnel records, which have been associated with the Veteran's claims file, indicate that she underwent basic training for approximately nine weeks in January 2007, and that she served in ACTDUTRA and INACTDUTRA as early as October 2007. See e.g. Army National Guard Retirement Points Statement Supplemental Detailed Report; see also Correspondence Entitled "Applicant Copy." Therefore, the Board remanded these issues for the Regional Office to obtain all outstanding service treatment records; and additionally, for the Regional Office to obtain outstanding private treatment records from Dr. A.R.P., consistent with the August 2017 Court Order, as well as all updated and/or outstanding VA treatment records. Notwithstanding these remand directives, however, some of the Veteran's service treatment records are still outstanding and have not been associated with the claims file. Although the Regional Office sought to obtain outstanding service treatment records, the claims file indicates that it did not verify the Veteran's actual periods of service in the National Guard, nor did it request for any service treatment records for a period prior to September 2008, nor a period after November 2008. See November 2018 E-mail Correspondence to Records Management Center (requesting for service treatment records from Army National Guard for the period of September 2008 to November 2008). More so, while the Regional Office contacted the Veteran to request an authorization and release for obtaining private treatment records from Dr. A.R.P. in a November 2018 subsequent development letter, efforts to obtain authorization from the Veteran are not noted or indicated, as this November 2018 correspondence is not listed or mentioned in the April 2021 supplemental statement of the case. As this results in a failure to fairly inform, notify, or apprise the Veteran about what attempts the Regional Office undertook to obtain these outstanding private treatment records, on remand, the Regional Office shall afford the Veteran with another opportunity to execute an authorization and release for the Regional Office to obtain these outstanding treatment records. 2. Statement of Case for Increased Rating Claim for Right Shoulder Scars In January 2020, the Regional Office purported to issue a statement of the case for the increased rating claim for the right shoulder. This January 2020 statement of the case inaccurately notes that the precise issue is an "[evaluation] for scars in right shoulder (anterior, lateral, posterior) (new criteria) currently evaluated at 20 percent disabling." Rather, the Veteran's right shoulder scars are currently rated at a zero non-compensable rating, effective August 13, 2018. Additionally, as a part of the reasons and bases for denying the rating increase for the right shoulder, the Regional Office explained, in pertinent part, that a "[rating] decision dated November 12, 2019 granted a 20 percent evaluation for scars left shoulder", and that an August 2019 examination indicated that out 5 residual surgical scars, 4 of the scars were tender. (Emphasis Supplied). As the Veteran is currently rated for left shoulder scars, at 20 percent disabling, and no other rating decision or Board decision has granted an increased, compensable rating for the right shoulder, it is apparent that the Regional Office conflated the rating assignment for the right shoulder with the rating assignment for the left shoulder. A statement of the case must be complete enough to afford the Veteran an opportunity to present written and/or oral arguments; and it must contain, among three factors, a summary of the evidence in the case relating to the issue in which the Veteran has expressed a disagreement. 38 C.F.R. § 19.29. However, this January 2020 statement of the case has an inaccurate description of the increased rating claim for a right shoulder disability, and the summary of the evidence is not related to the issue of an increased rating for right shoulder scars, as it provides a summary of evidence relating to the left shoulder. Thus, as the summary of the evidence effectively does not address or provide any evidence that is related to the right shoulder, the Board finds that this January 2020 statement of the case is the functional equivalent of the Regional Office's failure to issue a statement of the case for the issue of increased, compensable rating for right shoulder scars. Therefore, a remand is required for the Regional Office to issue a correct, superseding statement of the case on the issue of an evaluation for right shoulder scars, currently rated at a zero, non-compensable rating, thereby affording the Veteran with an opportunity to perfect an appeal of the correct issue relating to right shoulder scars. See Manlicon v. West, 12 Vet. App. 23. 3. Special Monthly Compensation Based on Regular Aid and Attendance In an October 2021 third party correspondence, the Veteran asserts that she is entitled to special monthly compensation benefits based on aid and attendance. She explained that she requires the regular aid and attendance of her brother to complete household tasks, such as, for example, chores and buying groceries; and that her service-connected disabilities render her unable to complete basic tasks for daily living. As the evidence indicates that the Veteran has a combination of service-connected and non-service-connected disabilities, it is not sufficiently discernable as to whether her asserted need for aid and attendance is based on her service-connected disabilities alone, or a combination of both service-connected and non-service-connected disabilities. Therefore, a remand is required for the Regional Office to schedule the Veteran for a VA examination for aid and attendance. The matters are REMANDED for the following action: 1. Utilize the requisite sources, and verify the Veteran's precise period of service. In doing so, please confirm and verify all periods of service in active duty, ACTDUTRA, and INACTDUTRA. 2. Thereafter, contact the requisite sources and obtain all outstanding service personnel and service treatment records, especially for the periods prior to February 2008, and after November 2008. a. All attempts to fulfill the development specified above, including mandatory responses to the requests, must be documented in the claims file. b. If, after making as many requests as are necessary to obtain these records and it is apparent that the records sought do not exist or further efforts to obtain these records would be futile, the Regional Office must issue a Formal Finding on the Unavailability of Records Memorandum. 3. Additionally, contact the Veteran to provide her with a final opportunity to execute the requisite authorization and release; and if the Veteran submits this form, obtain all outstanding private treatment records, especially including treatment records from Dr. A.R.P. a. All attempts to fulfill this development, including mandatory responses to the requests from the Veteran and/or the medical provider, must be documented in the claims file. b. If the Veteran does not respond to the request for authorization and release, please note this in a supplemental statement of the case. 4. Also, after obtaining and/or updating the Veteran's claims file with all outstanding medical records, as specified above, undertake all requisite steps to provide the Veteran and/or her representative with a complete, accurate, responsive statement of the case on the issue of an increased, compensable rating for right shoulder scars, pursuant to 38 U.S.C. § 7105 and 38 C.F.R. § 19.29. (Continued on the next page) Please remind the Veteran that a timely response to the statement of the case, by filing a Form VA 9: Appeal to the Board is required; and that a failure to timely file this form would result in a dismissal of this issue on appeal. 5. Also, after obtaining and/or updating the Veteran's claims file with all outstanding medical records, schedule the Veteran for a VA examination for an assessment of whether her need for aid and attendance is based on her service-connected disabilities. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.