Citation Nr: 21073987
Decision Date: 12/13/21	Archive Date: 12/13/21

DOCKET NO. 12-17 497
DATE: December 13, 2021

REMANDED

Entitlement to an increased rating in excess of 40 percent for a right shoulder strain is remanded.

Entitlement to an increased rating in excess of 20 percent prior to August 4, 2017 and in excess of 40 percent thereafter for lumbar spine osteoarthritis is remanded.

REASONS FOR REMAND

The Veteran served on active duty for training (ADT) from April 1983 to August 1983, with additional periods of ADT and inactive duty for training (IDT). Although the record reflects that the Veteran only performed periods of ADT or IDT, as the Veteran is service-connected for disabilities incurred during periods of ADT or IDT, these periods are considered active service and therefore she is considered a Veteran for VA purposes. 38 U.S.C. § 101(2), (22), (24).

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). 

By way of background, the Board denied entitlement to increased ratings for the low back and right shoulder disabilities in September 2020. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and a May 2021 Court Order implemented a Joint Motion for Remand which vacated and remanded the denials of increased ratings. The Veteran was notified in June 2021 that her appeal was being returned to the Board and that she had a period of 90 days to submit additional evidence or argument. Clark v. O'Rourke, 30 Vet. App. 92, 9799 (2018). The 90-day period having lapsed, the Board may now address the appeal on the merits.

In September 2021 correspondence, the Veteran's representative at the time of the September 2020 Board decision notified the Board that the June 2012 power of attorney form naming them the Veteran's representative had in fact not been properly executed, and therefore they were not the Veteran's representative. In November 2021, the Board notified the Veteran of this fact and requested that she submit a new power of attorney form in favor of her desired representative. The letter further stated that if no response was received, it would be assumed that the Veteran desired to represent herself. To date, a new power of attorney form has not been received, and therefore the Board will treat the Veteran as being pro se.

1. Entitlement to increased ratings for a right shoulder disability and a low back disability.

As noted in the Joint Motion for Remand, in August 2019 the Board remanded the issues on appeal to obtain any outstanding VA treatment records contained in VistA Imaging. However, a review of the file does not reflect that any of the records identified were obtained and added to the file. As such, a remand is warranted so that appropriate attempts may be made to obtain all outstanding VA treatment records, to include any records contained in VistA imaging. 

In addition, as noted in the Joint Motion for Remand the Veteran indicated that she received disability benefits from the Social Security Administration (SSA) during a February 2020 VA examination. However, these records are not associated with the file and there is no evidence that attempts have been made to obtain them. As such, on remand attempts must be made to obtain any outstanding SSA records. 38 C.F.R. § 3.159(c)(2).

The matters are REMANDED for the following action:

1. Obtain all outstanding VA treatment records, to include any records contained in VistA imaging.

2. Make appropriate efforts to obtain any outstanding Social Security Administration records.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wendell, 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.