Citation Nr: 21026378 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 13-33 801A DATE: April 30, 2021 REMANDED The issue of entitlement to an initial evaluation in excess of 20 percent disabling for service-connected left shoulder degenerative joint disease (DJD) with probable rotator cuff tear, claimed as bilateral arms, is remanded. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to May 6, 2013, in excess of 20 percent disabling for the period beginning May 6, 2013, to October 31, 2018, and in excess of 30 percent disabling for the period beginning January 1, 2020, and thereafter, for service-connected DJD of right shoulder with remote dislocation of acromioclavicular (AC), status post right shoulder replacement, is remanded. The issue of entitlement to an initial compensable evaluation for service-connected surgical scars, right shoulder, associated with DJD of right shoulder with remote dislocation of AC claimed as bilateral arms, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to November 1974. In May 2017, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is of record. In October 2018, this appeal was remanded by the Board for additional development. For the reasons outlined below, the Board finds that remand is again needed. In June 2018, the Veteran was granted service connection for surgical scars, right shoulder, associated with DJD of right shoulder with remote dislocation of AC claimed as bilateral arms, at a noncompensable rating, effective June 10, 2011. The issue has been added to the issues on appeal. In January 2020, the Veteran was assigned a temporary evaluation of 100 percent disabling, effective November 1, 2018, for a right shoulder arthroplasty. A 30 percent evaluation was assigned from January 1, 2020. As such, the issue of entitlement to an increased evaluation for the service-connected DJD of right shoulder with remote dislocation of AC, status post right shoulder replacement, has been recharacterized to exclude the period of temporary total evaluation. In correspondence received in July 2020, the Veteran indicated that he wishes to proceed pro se. The Board notes that a January 2019 Report of General Information states that the Veteran called to request “a more timelier [sic] decision as he is currently facing homeless [sic] and experiencing financial hardship in addition to being housebound.” The Board interprets this as a request to advance his claim on the docket (i.e., an AOD) on the grounds of “severe financial hardship.” See 38 C.F.R. § 20.902(c)(1). The Board finds that the Veteran’s situation meets the requirements for an AOD and grants his request. Finally, the Board acknowledges correspondence from November 2003 from the Veteran, in which he states that he wishes “to file an appeal.” In response, in December 2003, VA sent the Veteran a letter stating that it could not take further action, because the Veteran did not state specifically what he believed to be incorrect, nor did he state which VA decision he was appealing. The Veteran was provided a VA Form 21-4138, and invited to state specifically what he believed to be incorrect and why. In March 2004, a VA Form 21-4138, dated December 2003, was received noting that the Veteran is “appealing the decision on my claim for increased svc. connection.” The Veteran then cites problems with his right leg, left arm, and right shoulder. In the year prior, the Board is unable to identify a rating decision pertaining to the Veteran’s right leg, left arm, and right shoulder. The Board has identified correspondence pertaining to an amendment of the Veteran’s disability pension. See VA letter, December 2002. It appears that the Veteran’s disability pension was again amended in April 2003. See VA letter, April 2003. However, as these issues are not those identified by the Veteran in the March 2004 VA Form 21-4138, the Board finds that an SOC is not needed. Similarly, the Board acknowledges that another VA Form 21-4138 was received in December 2003. Here, the Veteran states, inter alia, that he “can’t afford an over payment.” However, a note from February 2004 from the Committee On Waivers And Compromises states that the Veteran does not have an overpayment. In the December 2003 VA Form 21-4138, the Veteran also states that “[t]his child should have never came off as my dependant [sic] because he was still in school at age 18 and didnt [sic] graduate until this year.” The Veteran does not specify the name of the child in this statement, but in a VA Form 21-441 with the same date stamp as the VA Form 21-4138, he mentions J.P.H. If this is the child referred to by the Veteran in his statement, the Board notes that the Veteran was sent a letter in October 2002 indicating that J. was no longer considered a dependent for VA pension purposes as of September 15, 2002. To the extent that the VA Form 21-4138 could be interpreted as an NOD, it was received more than a year after the October 2002 letter. Accordingly, the Board finds that an SOC is not needed. 1. Entitlement to an initial evaluation in excess of 20 percent disabling for service-connected left shoulder DJD with probable rotator cuff tear, claimed as bilateral arms. 2. Entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to May 6, 2013, in excess of 20 percent disabling for the period beginning May 6, 2013, to October 31, 2018, and in excess of 30 percent disabling for the period beginning January 1, 2020, and thereafter, for service-connected DJD of right shoulder with remote dislocation of AC, status post right shoulder replacement. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, a new VA examination is needed in order to adequately evaluate the current severity of the issues on appeal. Specifically, the Board asks that an examiner describe in terms of degrees of range of motion where the Veteran’s pain begins. See Correia v. McDonald, 28 Vet. App. 158 (2016). For example, at the March 2020 VA examination, it was reported that the Veteran experiences pain in both shoulders on flexion, abduction, external rotation, and internal rotation, in his initial range of motion measurements. However, the examination report does not clarify where this pain begins in terms of degrees of range of motion. The Board asks that this information be provided upon remand. Similarly, the examination report notes the following regarding repeated use over time for both shoulders: “Although the Veteran’s range of motion was unchanged, functional ability was limited due to pain.” The Board asks that the point, in degrees, at which the Veteran experiences pain be clearly noted. In addition, the Board finds that there may be outstanding treatment records to be obtained and associated with the claim file. In September 2019, the Veteran submitted VA Forms 21-4142 and 21-4142a for, inter alia, B. and H., Surgeons. It appears that records were obtained. See Private treatment records, September 2019. However, there is a notation with the records that states: “10-4-19 on hold pending receipt of paper chart from storage.” The Board asks that, upon remand, it be verified that all records were obtained. Similarly, in VA Forms 21-4142 and 21-4142a, received in March 2018, the Veteran indicated treatment at F. V.A.M.C. from 2017 (or possibly 2012) to present. However, the Board has not been able to identify treatment records from the later timeframe. Upon remand, the Board asks that any outstanding VA treatment records identified by the Veteran be obtained. Finally, the Veteran has indicated that the Social Security Administration (SSA) has given him a suffix to include with his Social Security number. See Report of General Information, December 2015. The Board notes that the most recent attempt to obtain records from the SSA does not indicate that this suffix was used. See, e.g., Message to SSA National Record Center, March 2021. Accordingly, upon remand the Board asks that an additional attempt be made to obtain any relevant outstanding SSA records using the suffix provided by the Veteran. 3. Entitlement to an initial compensable evaluation for service-connected surgical scars, right shoulder, associated with DJD of right shoulder with remote dislocation of AC claimed as bilateral arms. 4. Entitlement to a TDIU. The remaining issues on appeal are intertwined with the request for increased evaluations for the Veteran’s service-connected shoulder disabilities. Accordingly, remand is needed as to these issues. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In particular, the Board notes the following: (a) In September 2019, the Veteran submitted VA Forms 21-4142 and 21-4142a for, inter alia, B. and H., Surgeons. It appears that records were obtained. See Private treatment records, September 2019. However, there is a notation with the records that states: “10-4-19 on hold pending receipt of paper chart from storage.” The Board asks that, upon remand, it be verified that all records were obtained. (b) Similarly, in VA Forms 21-4142 and 21-4142a, received in March 2018, the Veteran indicated treatment at F. V.A.M.C. from 2017 (or possibly 2012) to present. However, the Board has not been able to identify treatment records from the later timeframe. Similarly, in correspondence received in July 2018, the Veteran noted treatment at VA facility in C. where “a more thorough x-ray . . . was done in June 2018.” Upon remand, the Board asks that any outstanding VA treatment records, to include x-ray images, identified by the Veteran be obtained. Finally, the Veteran has indicated that SSA has given him a suffix to include with his Social Security number. See Report of General Information, December 2015. The Board notes that the most recent attempt to obtain records from the SSA does not indicate that this suffix was used. See, e.g., Message to SSA National Record Center, March 2021. Accordingly, upon remand, the Board asks that an additional attempt be made to obtain any relevant outstanding SSA records using the suffix provided by the Veteran. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his shoulder disabilities. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked specifically to provide range of motion testing (ROM) for both shoulders for active motion, passive motion, weight-bearing, and nonweight-bearing. Full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report. In addition, for both shoulders the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, for both shoulders the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the shoulder disabilities and discuss the effect of the Veteran’s shoulder disabilities on any occupational functioning and activities of daily living. The examiner should state whether or not there is any neurologic disability that is the result of the shoulder disabilities. Finally, the examiner should address the impact of the Veteran’s shoulder disabilities on his employability. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.