Citation Nr: 21072534 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-48 968 DATE: December 3, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to an initial rating in excess of 10 percent for coronary artery disease prior to October 30, 2019, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to October 30, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to October 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board denied the claims for service connection for right shoulder and back disabilities, and the claim for an increased rating for coronary artery disease. The Board also granted a claim for service connection for tinnitus and remanded a claim of service connection for bilateral hearing loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In July 2021, CAVC granted a Joint Motion for Partial Remand (JMPR) vacating the Board's June 2020 decision to the extent that it denied the aforementioned claims and remanded them for further adjudication consistent with the JMPR. During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted the claim of service connection for bilateral hearing loss in a January 2021 rating decision. Therefore, this issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Board notes that the Court has held that a claim for a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). At a September 2021 VA examination, the Veteran raised a claim for a TDIU as part of the increased rating claim on appeal. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. A rating decision in September 2021, granted a disability rating of 100 percent for coronary artery disease, status post myocardial infarction and CABG with atrial fibrillation, effective October 30, 2019. Since a 100 percent rating is considered a full grant for benefits sought on appeal, the Board considers the appeal overall moot from October 30, 2019. However, prior to such date, the claim for a higher rating for coronary artery disease and the issue of entitlement to a TDIU remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993); see also Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a back disability is remanded. The Veteran reports that his back and right shoulder disabilities are due to the performance of his duties in service, which required him to carry loads up to 200 pounds filled with guns and ammunition. The service treatment records show that the Veteran was seen for right shoulder pain associated with probable muscle strain in March 1966. The remainder of the service treatment records fail to document any complaints of findings consistent with back or right shoulder disabilities. On VA examination in October and November 2016, following a review of the claims file an examination of the Veteran, the examiner opined that the back and right shoulder disabilities were less likely than not incurred in or caused by the claimed in-service injury, event or illness. Pertaining to the back, the examiner noted that the Veteran's service records were silent for back injuries and he did not start having lower back pain until 2008. The physician further explained that the Veteran had been ranching for most of his life which was very physically demanding work. The physician opined that the ranching, along with the Veteran's arthritis, was more likely than not the cause of his back pain. Concerning the right shoulder, the examiner essentially explained that the Veteran's in-service shoulder muscle strain was acute and transient and did not show chronic problems during service. Furthermore, the Veteran did not report having right shoulder pain until 1994. The July 2021 JMPR determined that the Board erred insofar as it relied on the 2016 VA opinion reports to deny the claims. The parties agreed that the 2016 VA opinions were inadequate as the examiner did not consider or take into account the Veteran's lay statements that his back and right shoulder problems had onset in service and progressively worsened after discharge from active duty. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). In order to provide a fully reasoned opinion, the JMPR indicated that the examiner must address the Veteran's lay reports of continuity of symptomatology since service, particularly in light of the fact that evidence received after the 2016 VA examinations showed that the Veteran reported back pain in 1995, and he was diagnosed with right shoulder arthritis in 1987. Consistent with the terms of the July 2021 JMPR, a remand is warranted to afford the Veteran new VA medical examinations containing complete and adequately reasoned nexus opinions. 3. Entitlement to an initial rating in excess of 10 percent for coronary artery disease prior to October 30, 2019 is remanded. The July 2021 JMPR noted that the Veteran was scheduled for a VA cardiology examination in April 2020 to ascertain the etiology of his atrial fibrillation, and there was no indication that efforts were made to obtain the examination report. Thus, a remand to obtain the VA examination report was required. However, the evidence reflects that the VA examination report dated September 2021, has since been associated with claims file. Additionally, the JMPR found that there were relevant outstanding private treatment records. The parties noted that the Veteran reported treatment for coronary artery disease at St. Alexius Medical Center in June 2019, September 2019, and October 2019. It was further noted that the most recent treatment records from St. Alexius were printed in January 2018. Consistent with the terms of the July 2021 JMPR, a remand is required to ensure that outstanding treatment records from St. Alexius be obtained. 4. Entitlement to a TDIU prior to October 30, 2019 is remanded. On VA heart examination in September 2021, the Veteran asserted due to his service-connected coronary artery disease, status post myocardial infarction and CABG with atrial fibrillation, he was forced to retire as he could no longer work as a rancher. As such, the claim for entitlement to a TDIU is inextricably intertwined with the claim for an increased rating for coronary artery disease. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required. On remand, the Veteran should be afforded an opportunity to submit a VA Form 21-8940. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for the heart disability, and the right shoulder and back disorders on appeal, and complete and return an appropriate authorization form for each treatment provider identified, to specifically include treatment records from St. Alexius dated since January 2018. After obtaining the completed release forms, request all identified pertinent medical records. If possible, the Veteran (or his representative) should get these records and submit them himself to expedite the case. This would help the Board greatly. 2. Send the Veteran appropriate notice with regard to the issue of entitlement to a TDIU. Ask him to complete and return a VA Form 21-8940, Application for Increased Compensation based upon Unemployability. 3. Schedule the Veteran for an examination by an appropriate clinician to address the claims for service connection for right shoulder and back disabilities. The claims file must be thoroughly reviewed by the examiner in connection with the examination. All tests and studies deemed necessary should be conducted and all findings should be reported in detail. Following review of the claims file and an examination of the Veteran, the examiner is asked to determine whether it is at least as likely as not (50 percent probability or greater) that any current right shoulder and/or back disability found on examination is related to the Veteran's service, including as due to overuse/wear and tear from carrying heavy gear, or to any injuries incurred therein, or developed within one year of discharge from service in October 1967. Please explain why or why not. In formulating the opinion, the examiner is asked to comment on the available service treatment records, to specifically include the March 1966 probable right shoulder muscle strain, as well as the post-service treatment records that show complaints of back pain in 1995, and right shoulder arthritis in 1987. The examiner is advised that regardless of documentation in the service treatment records, the Veteran is competent to report that he suffered right shoulder and/or back pain during service and has had continued symptoms since that time. If there is a medical basis to doubt the history reported by the Veteran the examiner should so state, and explain why. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.