Citation Nr: 21075364
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 17-43 591
DATE: December 20, 2021

REMANDED

Entitlement to a disability rating in excess of 20 percent for right shoulder arthralgia (frozen shoulder) with adhesive capsulitis, rotator cuff tear, and degenerative osteoarthritis for the period on appeal prior to October 2, 2019, and from December 1, 2019, to July 28, 2020, and from July 1, 2021, and thereafter is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1984 to May 1995.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO).

Entitlement to a disability rating in excess of 20 percent for right shoulder arthralgia (frozen shoulder) with adhesive capsulitis, rotator cuff tear, and degenerative osteoarthritis for the period on appeal prior to October 2, 2019, and from December 1, 2019, to July 28, 2020, and from July 1, 2021, and thereafter is remanded.

The Board observes that following the Agency of Original Jurisdiction's (AOJ) issuance of a November 2020 Supplemental Statement of the Case (SSOC), additional relevant treatment records were added to the claims file before the file was transferred to the Board.  Initial consideration of evidence received prior to certification of the appeal is beyond a waiver by a claimant.  See 38 C.F.R. §§ 19.31, 19.37.  Additionally, a VA examination of the Veteran's right shoulder and more relevant treatment records were added to the claims file after the file was transferred to the Board.  The examination results and records are pertinent to the Veteran's claim for increased ratings and have not yet been considered by the AOJ.  Notably, the Veteran conveyed, and treatment records reference, an additional right shoulder surgery in 2021.  Another SSOC has not been issued considering the additional evidence.  While the Veteran cannot waive initial consideration of the evidence received prior to certification of the appeal, the Board notes the Veteran also did not submit a waiver of AOJ consideration of the evidence added to the claims file after certification to the Board.  Thus, the Board finds a remand is required in order for the AOJ to consider the additionally added evidence of record and furnish an SSOC.   38 C.F.R. §§ 19.31; 20.1305.

Furthermore, the Board notes that there are two outstanding Privacy Act requests that do not appear to have been fulfilled.  In January 2021 and July 2021, the Veteran submitted two different Privacy Act requests, each for a specifically listed letter.  Because this claim is being remanded, there is no prejudice to the Veteran in referring the Privacy Act Requests to the AOJ for appropriate action.  Thus, on remand, the AOJ must follow procedures for complying with the pending Privacy Act requests. 

The matters are REMANDED for the following action:

1. Pursuant to the January 2021 and July 2021 record requests, and in accordance with the procedures for complying with a Privacy Act request, provide the requested records.

2. After completing the above development, with consideration of all of the evidence of record, including that which has been received since November 2020, re-adjudicate the increased rating claim for the right shoulder disability.  If the benefits sought on appeal remain denied, the Veteran and representative should be provided a Supplemental Statement of the Case.

 

 

SHEREEN M.  MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.C. Allen, Associate 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.