Citation Nr: 21010424 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-01 369 DATE: February 24, 2021 REMANDED The claim of entitlement to a rating in excess of 30 percent for residuals of a gunshot wound to the left shoulder is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Board denied the Veteran’s claim for an increased rating for residuals of a gunshot wound to the left shoulder, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a December 2015 Memorandum Decision, the Court determined that the Board provided an inadequate statement of reasons or bases for finding the Veteran was not entitled to a separate rating for arthritis of the left shoulder and failed to properly adjudicate a claim for TDIU, which had been reasonably raised by the record. The Court vacated the Board’s October 2014 decision and remanded both claims for readjudication. The claims were remanded by the Board for further development in July 2016, August 2018, and July 2020. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that in July 2020, the Board granted service connection for arthritis of the left shoulder as secondary to the Veteran’s service-connected gunshot wound. In an October 2020 rating decision, the RO assigned a 20 percent rating for arthritis of the left shoulder, effective February 11, 2020, and the Veteran was notified of that decision in a letter dated October 5, 2020. In November 2020, the Veteran called VA in response to the October 2020 rating decision and indicated that he was seeking retroactive payment for that claim. In a January 2021 brief, the Veteran’s representative asserted that the Veteran is entitled to a separate rating “of at least 20 percent, but more accurately 30 percent” for arthritis of the left shoulder. However, the Veteran has not appealed the rating or effective date assigned for arthritis of the left shoulder. The Veteran is advised that if he wishes to seek review of the rating or effective date assigned for arthritis of the left shoulder, he must elect an administrative review option by timely filing a request for Higher Level Review (VA Form 20-0996) or an appeal to the Board (Notice of Disagreement, VA Form 10182) within one year of the date of the letter accompanying the October 2020 rating decision. See 38 C.F.R. §§ 3.2500, 3.2601, 20.202, 3.203 (2020). 1. The claim of entitlement to a rating in excess of 30 percent for residuals of a gunshot wound to the left shoulder is remanded. In the August 2018 and July 2020 remands, the Board directed the agency of original jurisdiction (AOJ) to obtain outstanding VA treatment records which were noted to have been scanned into VistA Imaging on January 8, 2010; January 25, 2010; February 3, 2010; February 12, 2010; February 17, 2010; April 19, 2010; June 3, 2010; July 14, 2010; July 19, 2010; July 20, 2010; and July 21, 2010. However, it does not appear that those records have not been associated with the claims file. Although the Board sincerely regrets the delay, another remand is required in order to comply with the terms of the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). 2. The claim of entitlement to TDIU is remanded. As the claim of entitlement to TDIU is inextricably intertwined with the claim for an increased rating for residuals of a gunshot wound to the left shoulder, that claim is remanded for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the following VA treatment records, which are noted to have been scanned into VistA Imaging: • January 8, 2010 (“Fee Basis Authorization” dated 11/25/09) • January 25, 2010 (“Fee Basis Authorization” dated 12/2/09) • February 3, 2010 (“Fee Basis Authorization” dated 11/12/09) • February 12, 2010 (“Fee Basis Authorization” dated 11/10/09) • February 17, 2010 (“Fee Basis Authorization” dated 11/18/09) • April 19, 2010 (“Fee Basis Authorization” dated 4/19/10) • June 3, 2010 (“Medication Reconciliation” dated 5/25/10) • July 14, 2010 (“Physical Therapy Note” dated 6/25/10) • July 19, 2010 (“Fee Basis Authorization” dated 7/19/10) • July 20, 2010 (“Fee Basis Authorization” dated 7/20/10) • July 21, 2010 (“Fee Basis Authorization” dated 7/21/10) If any requested records are unavailable, the Veteran should be notified of such. 2. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.