Citation Nr: 22012308 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 13-28 590 DATE: March 3, 2022 REMANDED For the appeal period prior to March 7, 2019, entitlement to a rating in excess of 10 percent for right shoulder impingement syndrome, status post labral tear with degenerative changes, is remanded. For the appeal period beginning March 7, 2019, entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome, status post labral tear with degenerative changes, is remanded. Preliminary Matters The Veteran served on active duty from August 1999 to May 2004, from April 2008 to January 2010, from August 2011 to December 2011, from May 2013 to September 2013, from June 2015 to November 2015, from October 2016 to March 2017, from July 2017 to December 2017, and from January 2018 to May 2018. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Veteran was initially granted service connection for her right shoulder disability in a July 2007 rating decision and was assigned a 10 percent rating effective August 23, 2006. In December 2008, the Veteran filed a claim for an increased rating and, in a May 2009 rating decision, the Agency of Original Jurisdiction (AOJ) continued the 10 percent rating. New evidence relevant to the claim was received in February 2010 (i. e., a VA joints examination report); as such, the May 2009 rating decision did not become final. See 38 C.F.R. § 3.156 (b). In a February 2010 rating decision, the AOJ again continued the 10 percent rating for the Veteran's right shoulder disability. A Notice of Disagreement was timely filed by the Veteran in August 2010, and a Statement of the Case (SOC) was issued in August 2013. The Veteran submitted a substantive appeal (VA Form 9) in September 2013 and requested a Travel Board hearing. In a March 2017 letter, the AOJ acknowledged the Veteran's request for a personal hearing (Travel Board) before the Board. However, the Veteran was informed that VA did not have the facilities to conduct hearings outside of the continental United States (the Veteran was living in Germany at the time). The Veteran was notified of various other opinions to submit her testimony. The AOJ also notified the Veteran that if a response to the notice letter was not received within 60 days, she would be removed the hearing list. To date, neither the Veteran nor her representative have responded to the March 2017 hearing letter. Further, the January 2022 written brief presentation, submitted by the Veteran's representative, contains no references to a hearing request. Therefore, the Veteran's request for a hearing is deemed waived. 38 C.F.R. § 20.702 (d). REASONS FOR REMAND As indicated above, VA issued a SOC in August 2013, which continued a 10 percent rating of the Veteran's right shoulder disability. Thereafter, in a January 2020 rating decision, the AOJ granted a 20 percent rating for the right shoulder disability effective March 7, 2019. New and relevant evidence was also received following the most recent SOC, to include treatment records documenting the Veteran's right shoulder range of motion. VA treatment records addressing the right shoulder were also obtained in January 2020. The Board finds that a remand is required because a supplemental statement of the case (SSOC) must be furnished to a claimant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. The Board recognizes that, although the Veteran's substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because some of the additional evidence was obtained by VA and was not submitted by the Veteran. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). As noted above, this provision only applies to evidence submitted by the Veteran. Therefore, the issue must be remanded to allow for AOJ consideration of newly obtained evidence. The Board also notes that the Veteran was last afforded a VA shoulder examination in December 2010, over 11 years ago. Lay and medical evidence received since that time shows that her shoulder disability may have worsened since the last VA examination. As such, a new examination is warranted to assist in determining the current severity of her disability. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records and associate them with the electronic claims file. 2. Schedule the Veteran for a VA examination to determine the severity of her right shoulder disability. The claims folder must be made available to, and be reviewed by, the examiner in conjunction with the examination, and that review must be noted on the examination report. All tests deemed necessary should be conducted and the results reported in detail. (a.) The examiner is asked to provide an opinion as to the level of severity of the Veteran's service-connected right shoulder disability throughout the period on appeal (i. e., beginning in December 2007). (b.) If the Veteran has had different levels of severity of her service-connected right shoulder disability at different time periods, those should be noted by the examiner. 3. Then, readjudicate the issues on appeal. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.