Citation Nr: 21015913
Decision Date: 03/18/21	Archive Date: 03/18/21

DOCKET NO. 13-27 654
DATE: March 18, 2021

REMANDED

Entitlement to a disability rating greater than 10 percent for shin splints of the right lower extremity is remanded.

Entitlement to a disability rating greater than 10 percent for shin splints of the left  lower extremity 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 in the United States Marine Corps from March 1975 to November 1977.  He timely appealed these matters from a February 2012 rating decision that granted service connection and assigned noncompensable ratings for shin splints of each lower extremity.  

In April 2018, the Board of Veterans’ Appeals (Board) denied earlier effective dates, to include based on clear and unmistakable error (CUE); and remanded the matters for compensable ratings for shin splints of each lower extremity for further development.

In November 2019, the Agency of Original Jurisdiction (AOJ) awarded separate 10 percent ratings for shin splints of each lower extremity.  As the Veteran has not expressed satisfaction with the partial grant, these matters remain on appeal.  The matters again were remanded in January 2020 for due process concerns and for rescheduling examination.  The Veteran currently is proceeding pro se.

In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans’ Claims (Court) held, in substance, that every claim for higher rating includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working.

VA treatment records reveal that the Veteran is in receipt of Supplemental Security Income (SSI) from the Social Security Administration (SSA). While this benefit is based primarily on income, it does include some consideration of disability.  The Veteran has indicated he applied for the benefit in October 2011, contemporaneous with the current claim for VA benefits.  His application was based at least in part on disability due to his lower extremities.  The Board cannot, in light of the period of application and the basis for it, find that the SSA records are not relevant, and they must be obtained. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).

The matters are REMANDED for the following action:

1. Contact SSA and request copies of all decisions and supporting documentation related to awards of SSI or other disability benefits to the Veteran.

2. Then, readjudicate the claim on appeal.  If any benefit sought remains denied issue a supplemental statement of the case and, after appropriate time for response, return the matter to the Board.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Mary C. Suffoletta

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.