Citation Nr: 21076545 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-00 540A DATE: December 27, 2021 REMANDED Entitlement a disability rating greater than 30 percent for service-connected torn deltoid ligament of the right shoulder with degenerative joint disease is remanded. Entitlement to an initial disability rating greater than 20 percent for service-connected acromioclavicular joint osteoarthritis of the left shoulder is remanded. Entitlement to a disability rating greater than 20 percent for service-connected residuals of a simple fracture of the right fibula is remanded. Entitlement to a compensable disability rating for service-connected hemorrhoids is remanded. REASONS FOR REMAND The Veteran had active service from December 1962 to February 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana. This matter was previously before the Board in October 2019 at which time it was remanded for additional development. The issues on appeal had previously included entitlement to service connection for a cervical spine disability, a low back disability, a psychiatric disorder to include posttraumatic stress disorder (PTSD); entitlement to an increased disability rating for a service-connected left ankle disability; and entitlement to a TDIU. During the pendency of this appeal, by rating action dated in December 2020, service connection for a cervical spine disability, a low back disability, and PTSD; and entitlement to a TDIU were granted. Additionally, in a Board decision dated in June 2020, an increased disability rating for the service-connected left ankle disability was denied. As such, these issues are no longer before the Board. In February 2021, correspondence was received from the Veteran's representative then of record requesting to withdraw as representative of record. In correspondence dated in March 2021, the Board requested that the Veteran clarify his wishes as to his representation. The Board notified the Veteran that if a reply was not received within 30 days of the date of the letter, it would be assumed that the Veteran wished to represent himself. The Veteran did not provide a response. 1. Entitlement a disability rating greater than 30 percent for service-connected torn deltoid ligament of the right shoulder with degenerative joint disease. 2. Entitlement to an initial disability rating greater than 20 percent for service-connected acromioclavicular joint osteoarthritis of the left shoulder. 3. Entitlement to a disability rating greater than 20 percent for service-connected residuals of a simple fracture of the right fibula. 4. Entitlement to a compensable disability rating for service-connected hemorrhoids. In correspondence dated in June 2020, the Veteran's representative requested that he be provided with copies of VA medical records. In this request, he specified records dated from November 22, 2019, through June 16, 2020. In an accompanying Request for and Authorization to Release Health Information (VA Form 10-5345), dated May 2020, it is indicated that the Veteran had been treated at the Tulane Medical Center, 1415 Tulane Avenue, New Orleans, LA 70112, and records dated from November 21, 2019, through June 16, 2020, were identified. VA outpatient treatment records dated January 2020 are not of record. Additionally, there do not appear to be any medical records from the Tulane Medical Center associated with the evidence of record. Consequently, the Board finds that a remand of the above issues is necessary in order to obtain the identified outstanding VA medical records. Additionally, outstanding VA and/or private treatment records (to include from the Tulane Medical Center) must also be obtained. See 38 U.S.C. § 5103A (b), (c); see also Sullivan v. McDonald, 815 F. 3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas v. Derwinski, 1 Vet. App. 308 (1991), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the more favorable regulations should apply to the Veteran. However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with United States Supreme Court and Federal Circuit precedents. Specifically, in Kuzma v. Principi, 341 F. 3d 1327 (Fed. Cir. 2003), the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110(g); VAOPGCPREC 3-00. In pertinent part, the amendments to the regulations impact rating impairment of the tibia and fibula under Diagnostic Code 5262. Moreover, the regulations addressing impairment of the shoulder under Diagnostic Code 5201 were revised to further explain the degrees of disability for reduction in movement of the arm. As this matter is being remanded for the reasons set forth above, the Board finds that on remand, the RO must consider whether there is sufficient evidence to rate the service-connected shoulder and fibula disabilities under the revised rating criteria, and whether an additional VA examination of the Veteran is required. The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records of the Veteran from any VA medical facility that may have treated him to date, to specifically include the period from November 22, 2019, through June 16, 2020, and associate those documents with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for the Tulane Medical Center, 1415 Tulane Avenue, New Orleans, LA 70112. Make two requests for the authorized records from this facility unless it is clear after the first request that a second request would be futile. 3. Ask the Veteran to identify any VA or private treatment that he may have had for his service-connected left and right shoulder, right fibula, and/or hemorrhoid disabilities, not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he may endeavor to obtain those records. 4. Review all evidence received obtained since the December 2020 Supplemental Statement of the Case (SSOC), and following any development deemed necessary, readjudicate the claims. In so doing, consider whether there is sufficient evidence to rate the service-connected left and right shoulder and right fibula disabilities under the revised rating criteria, and whether an additional VA examination of the Veteran is required. If an additional VA examination is deemed necessary, it should be afforded to the Veteran. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Orfanoudis, 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.