Citation Nr: 21039920 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-48 675 DATE: July 1, 2021 REMANDED Entitlement to a compensable rating for a scar associated with right bicipital tendon tear and rotator cuff tear, status post arthroscopic repair of superior labral tear from anterior to posterior (SLAP) lesion (formerly residuals of right shoulder injury, postoperative) (Major) (Dominant) is remanded. Entitlement to a rating in excess of 20 percent from August 19, 2013 through February 18, 2014 and in excess of 40 percent from June 1, 2014 for a right bicipital tendon tear and rotator cuff tear, status post arthroscopic repair of superior labral tear from anterior to posterior (SLAP) lesion (formerly residuals of right shoulder injury, postoperative) (Major) (Dominant) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REASONS FOR REMAND The Veteran had active duty service from March 1999 to October 2000. This appeal comes before the Board of Veteran's Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, a virtual Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Regarding the claim for TDIU, the evidence in this case, including the Veteran's virtual hearing testimony, raises the question of whether the Veteran is unemployable as a result of his service-connected psychiatric and physical disabilities. The Board thus finds that entitlement to a TDIU has been raised by the record and has re-characterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding the request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, can be part of claim for increased compensation); see also Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001) (holding that a separate formal claim is not required in cases where an informal claim for a TDIU has been reasonably raised). 1. Entitlement to a rating in excess of 20 percent from August 19, 2013 through February 18, 2014 and in excess of 40 percent from June 1, 2014 for a right bicipital tendon tear and rotator cuff tear, status post arthroscopic repair of superior labral tear from anterior to posterior (SLAP) lesion (formerly residuals of right shoulder injury, postoperative) (Major) (Dominant) is remanded. 2. Entitlement to a compensable rating for a scar associated with right bicipital tendon tear and rotator cuff tear, status post arthroscopic repair of superior labral tear from anterior to posterior (SLAP) lesion (formerly residuals of right shoulder injury, postoperative) (Major) (Dominant) is remanded. The Veteran seeks higher ratings for his service connected right shoulder disability and serviceconnected right shoulder scar. During his May 2021 virtual Board hearing, the Veteran testified that he had applied for Social Security Disability benefits but was denied. There is no indication in the record that VA has sought to obtain the Veteran's records from the Social Security Administration (SSA) records. VA must attempt to obtain relevant records from a Federal department or agency unless further attempts would be futile. These records include medical and other records from the SSA. See 38 C.F.R. § 3.159 (c)(2). In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the Court of Appeals for Veterans Claims (CAVC) found that VA's duty to assist specifically includes requesting information from other Federal departments. In Baker v. West, 11 Vet. App. 163, 169 (1998), the CAVC further stated that VA is required to obtain evidence from other agencies, including decisions of the SSA. Therefore, the Board finds that remand is necessary to obtain any outstanding SSA records. 3. Entitlement to a total disability rating based on individual unemployability (TDIU)due to service connected disabilities. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following action: 1. Update the Veteran's claims file with any recent VA treatment records. (Continued on the next page) 2. Obtain the Veteran's federal records from the SSA. Document all requests for information as well as all responses in the claims file. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.