Citation Nr: 21007909
Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 17-01 401
 DATE: February 11, 2021

REMANDED

Entitlement to an increased rating for a post-operative right shoulder scar, rated as noncompensable prior to December 8, 2016; and 10 percent thereafter, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1968 to November 1969.  This matter comes before the Board of Veterans’ Appeal (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2019, the Board denied entitlement to a higher rating for the service-connected scar.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  By way of a September 2020 Order, the Court vacated the Board’s decision, with remand for adjudication consistent with the JMR.

Entitlement to an increased rating for a post-operative right shoulder scar, rated noncompensable prior to December 8, 2016; and 10 percent thereafter, is remanded.

Remand is necessary to assist the Veteran in developing his claim.  Specifically, there are outstanding records of examination of treatment from non-VA facilities that appear to have been authorized by VA which must be obtained.  See 38 C.F.R. § 3.159(c)(3); 38 U.S.C. § 5103A(c)(1)(B); see also Sullivan v. McDonald, 815 F.3d 786, 790-91 (Fed. Cir. 2016).

In the September 2020 CAVC JMR, it was noted that the Veteran’s VA treatment records contained references to private physical therapy treatment records (Community Care) for the Veteran’s right shoulder.  Though the VA treatment note indicates that the private records were scanned, they were not located in the file.

Upon review of the Veteran’s claims file, the Board finds that the private physical therapy treatment records referenced in both an April 2018 and June 2018 VA treatment note are still outstanding.  The April 2018 VA treatment note indicates that the physical therapy in question was a ‘non-VA care consultation’ and the Veteran’s initial evaluation.  The June 2018 VA treatment note indicates that the non-VA care consultation was completed, and the plan of care/discharge was in May 2018.  As these missing records are relevant to the Veteran’s claim for increase for his right shoulder scar, they must be obtained. 

Additionally, the Board notes that the Veteran’s treatment records were last updated in October 2019; as such, these records should also be obtained.

The matters are REMANDED for the following action:

1. Obtain the Veteran’s VA treatment records for the period from October 2019 to the present.

2. Ask the Veteran to complete a VA Form 21-4142 for all private facilities that treated his right shoulder during the pendency of this claim.  All physical therapy and treatment records from non-VA facilities that were authorized by VA, including those from Community Care-Consults from April 2018 through May 2018, must be associated with his claims file.

Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile.

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Telamour, 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.