Citation Nr: 21008463 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-50 607 DATE: February 17, 2021 REMANDED Entitlement to a rating greater than 20 percent for left shoulder bicipital tendonitis, status post arthroscopic clavicle resection, is remanded. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to March 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA) Regional Office (RO). In August 2019, the Board issued a decision denying entitlement to TDIU and remanding entitlement to a rating greater than 20 percent for left shoulder bicipital tendonitis, status post arthroscopic clavicle resection (left shoulder disability), for additional development – specifically, for the Agency of Original Jurisdiction (AOJ) to obtain another VA examination opinion on the severity of the Veteran’s left shoulder disability and to obtain updated VA treatment records from September 2018 to present. Such an opinion was obtained in November 2019 and updated VA treatment records from September 2018 were obtained. The Board thus finds that the AOJ has substantially complied with the remand directives set forth in that August 2019 decision and remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran appealed the portion of that Board decision that denied entitlement to TDIU to the United States Court of Appeals for Veterans Claims (Court). The Veteran, by and through his attorney, and the Secretary of Veterans Affairs (collectively, the Parties) filed a Joint Motion for Partial Remand (Joint Motion) with the Court in June 2020. In that Joint Motion, they asked the Court to remand the issue to the Board due to an agreed-upon error by the Board. Specifically, the Parties agreed that the Board erred by “providing an inadequate statement of reasons or bases in support of its decision” when denying entitlement to TDIU. In June 2020, the Court issued an order (Order) granting the Joint Motion and remanding the claim to the Board for action consistent with the Joint Motion (i.e., re-adjudication of the Veteran’s claim for TDIU and provision of adequate reasons and bases consistent with Ray v. Wilkie, 31 Vet. App. 58, 72 (2019)). The issue of entitlement to TDIU is now before the Board again for said action. 1. Entitlement to a rating greater than 20 percent for left shoulder bicipital tendonitis, status post arthroscopic clavicle resection, is remanded. 2. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. The AOJ issued its most recent Supplemental Statement of the Case (SSOC) on July 13, 2020 as to the issue of entitlement to a rating greater than 20 percent for left shoulder bicipital tendonitis, status post arthroscopic clavicle resection. Since then, additional VA-generated evidence has been added to the claims file, including but not limited to VA treatment records that were associated with the claims file on August 6, 2020. Those records were received prior to transfer of this case to the Board, and the Veteran has not submitted a waiver of AOJ consideration of those records; as such, that issue must be remanded for a new SSOC, pursuant to 38 C.F.R. §§ 19.31 & 19.37(a). The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the Veteran’s claim of entitlement to a rating greater than 20 percent for left shoulder bicipital tendonitis, status post arthroscopic clavicle resection. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of entitlement to TDIU must be deferred pending the outcome of the Veteran’s claim of entitlement to a rating greater than 20 percent for left shoulder bicipital tendonitis, status post arthroscopic clavicle resection. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Readjudicate the issues on appeal in light of the additional evidence added to the record since the July 2020 SSOC. If any of the benefits sought on appeal are denied, the Veteran and his representative should be provided another SSOC. Then, an appropriate period of time should be allowed for response before the case is returned to the Board. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.