Citation Nr: 21011695 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-36 859 DATE: March 2, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent for left shoulder degenerative joint disease with recurrent dislocations is remanded. Entitlement to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Army from January 1977 to September 1978. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. The Board notes that the Veteran is rated at 40 percent disabling for his left shoulder condition which is the maximum available disability rating for limitation of motion of the left shoulder under the assigned Diagnostic Code5201. Under Diagnostic Code 5200, a 50 percent disability rating may be assigned for unfavorable ankylosis of scapulohumeral articulation with abduction limited to 25 degrees from the side of the major arm. 38C.F.R. §4.71a. There is conflicting findings as to whether the Veteran had ankylosis. In December 2019, the Board remanded this issue for a new VA examination. The Board noted that the June 2012 VA examination report documented that the Veteran had ankylosis in his left shoulder. However, the October 2013 and April 2017 VA examination report noted that the Veteran did not have ankylosis. In the December 2019 remand directives, the VA examiner was asked to specifically address whether the Veteran has or has had ankylosis of the left shoulder at any time during the pendency of the claim, or the functional equivalent. In January 2020, the Veteran was afforded a VA shoulder examination. The VA examiner examined the Veteran and addressed the current severity of the Veteran’s left shoulder. However, the VA examiner did not address whether the Veteran has or has had ankylosis of the left shoulder at any time during the pendency of the claim, or in any way address the prior findings to reconcile the apparent conflict. Therefore, the opinion does not comply with the Board’s December 2019 remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part and parcel of an increased rating claim when such claim is raised by the record. Thus, the TDIU claim is intertwined with the increased rating claim being remanded herein; thus, the TDIU must also be remanded. The matters are REMANDED for the following action: 1. Associate updated VA treatment records with the claims file. 2. Schedule the Veteran a VA shoulder examination to determine the current severity of his service-connected left shoulder condition. The claims folder must be reviewed in conjunction with the examination. The examiner should elicit from the Veteran a complete history of the symptoms and severity of his left shoulder. The examiner must specifically address whether the Veteran has or has had ankylosis of the left shoulder at any time during the pendency of the claim, or the functional equivalent. The examiner must review the VA June 2012 examination report finding ankylosis of the left shoulder. If ankylosis is not found on examination the examiner must reconcile this with the findings documented by the VA June 2012 VA examination report. A thorough rationale and explanation for the conclusions reached should be set forth. 3. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.