Citation Nr: 22014506 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 11-09 780 DATE: March 14, 2022 REMANDED The claim of entitlement to increased ratings for left shoulder disability for the periods when he does not have temporary total evaluations, starting from the effective date of service connection, is remanded. The claim of entitlement to an effective date earlier than November 3, 2008, for the assignment of a temporary total evaluation based on the need for convalescence under 38C.F.R. §4.30 is remanded. The claim of entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to March 1978. This appeal is from a March 2018 rating decision that effected the Board's December 2017 grant of service connection for left shoulder arthritis. The Veteran timely appealed the initial rating assigned to the shoulder as well as the effective date of his first period of convalescence. This appeal is also from a March 2011 rating decision that denied TDIU. The Board remanded this appeal in September 2020 for additional development, which, unfortunately, has not been substantially completed. Accordingly, the claims must be remanded in order to preserve the Veteran's due process rights. The Board regrets the additional delay that is created. 1. The claim of entitlement to increased ratings for left shoulder disability for the periods when he does not have temporary total evaluations, starting from the effective date of service connection, is remanded. 2. The claim of entitlement to an effective date earlier than November 3, 2008, for the assignment of a temporary total evaluation based on the need for convalescence under 38C.F.R. §4.30 is remanded. 3. The claim of entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Board previously asked that an opinion be obtained as to the length of convalescence that would have likely been prescribed for each of the Veteran's surgeries that occurred during the appeal period. The October 2020 VA examiner indicated that her specialty was in family practice and that the requested opinion was beyond the scope of her practice. She did not provide an opinion, and the AOJ (agency of original jurisdiction) did not obtain an opinion from an examiner who would be able to provide the requested opinion. It was error to send this case back to the Board for review without substantially completing that portion of the remand request. The dates of the convalescence periods impact the increased rating decisions, as well as the TDIU, such that they must also be remanded. However, the Board notes that review of records from the Battle Creek VAMC show he was involved in vocational rehabilitation from 2007 to 2010. In March 2017, the AOJ attempted to locate records of his participation at the Detroit VAMC, which did not have any. The record does not provide clear indication that the records from Battle Creek were included in the search. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Check whether there records of vocational rehabilitation can be obtained from the Battle Creek, Michigan VA system. 3. After completion of the first and second directives, forward the claims file to an examiner qualified to opine on convalescent periods following orthopedic shoulder surgeries. The examiner is asked to review the available records and provide an opinion on the length of the convalescent periods following his surgeries on November 8, 2008, July 29, 2009, and November 12, 2009. He has been awarded convalescence for the periods from November 8, 2008, to February 28, 2009, from July 29, 2009, to October 31, 2009, and from November 12, 2009, to March 31, 2010. The examiner is asked to review the relevant literature, if needed, prior to opining, and to support all opinions with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.