Citation Nr: 22018505 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-11 633 DATE: March 29, 2022 REMANDED Entitlement to an initial evaluation in excess of 10 percent prior to February 4, 2021, and in excess of 20 percent thereafter for left shoulder impingement syndrome status post repair with surgical scar is remanded Entitlement to an increased evaluation in excess of 10 percent prior to February 4, 2021, and in excess of 20 percent thereafter for right shoulder impingement syndrome status post repair with surgical scar is remanded Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded REASONS FOR REMAND The Veteran served on active duty from January 1994 to March 2015. In a September 2015 rating decision, the Veteran was awarded service connection for right and left shoulder impingement syndrome and assigned a 10 percent rating under Diagnostic Codes 5003-5237 effective April 1, 2015. In a November 2015 Rating Decision, the RO awarded service connection for traumatic arthritis, right shoulder impingement syndrome and assigned a separate 10 percent evaluation under Diagnostic Code effective 5201-5010. The Board notes that in the November 2015 rating code sheet, the RO reassigned Diagnostic Codes 5010-5203 for the Veteran's bilateral shoulder impingement syndrome with a surgical scar. The Veteran filed a January 2016 VA Form 21-0958 Notice of Disagreement requesting an increased evaluation of 20 percent. The Regional Office (RO) confirmed and continued the Veteran's 10 percent evaluation in a February 2016 statement of the case (SOC). The Veteran filed a March 2016 VA Form 9, Appeal to the Board of Veteran's Appeals requesting an increased evaluation for his bilateral shoulder disorder. In an October 2020 Board decision, the Board remanded the Veteran's claim for additional development. Specifically, the Board requested that a VA examiner report all functional loss during flare-ups. In a March 2021 rating decision, the RO assigned and increased rating of 20 percent effective February 4, 2021 for the Veteran's bilateral shoulder impingement syndrome. For the Veteran's right shoulder only, in the March 2021 code sheet, the RO reassigned a Diagnostic Code of 5201 while maintaining the assignment of Diagnostic Code 5010-5203 for the Veteran's left shoulder. In a June 2021 rating decision, the RO severed service connection for traumatic arthritis, right shoulder impingement syndrome effective April 2015. In an October 2021 Board decision, the Board remanded the Veteran's claim for additional development. Specifically, the Board requested that the RO consider new medical records including a June 2021 VA examination associated with the claims file and readjudicate the claim. The RO confirmed and continued the Veteran's 10 percent evaluation prior to February 4, 2021 and 20 percent thereafter evaluation in an October 2021 supplemental statement of the case (SSOC). However, the RO did not comply with the Board's remand directives and did not address the additional June 2021 VA examination as requested or even list it as evidence it considered in the October 201 SSOC. As it pertains to the Veteran's TDIU claim, the Veteran filed a November 2018 TDIU Application, the Veteran reported that his disabilities rendered him too disabled to work as of March 2015. The RO denied the Veteran's TDIU claim in February 2019 rating decision. 1. Entitlement to an initial evaluation in excess of 10 percent prior to February 4, 2021, and in excess of 20 percent thereafter for left shoulder impingement syndrome status post repair with surgical scar is remanded 2. Entitlement to an increased evaluation in excess of 10 percent prior to February 4, 2021, and in excess of 20 percent thereafter for right shoulder impingement syndrome status post repair with surgical scar is remanded As indicated in the Veteran's June 2021 informal hearing presentation, the Veteran contends that he is entitled to a higher evaluation in excess of 10 percent prior to February 4, 2021, and in excess of 20 percent thereafter for his bilateral shoulder impingement syndrome. In an October 2021 Board decision, the Board remanded the Veteran's claim for additional development. Specifically, the Board noted that since the issuance of the most recent March 2021 supplemental statement of the case (SSOC), an additional June 2021 VA shoulder examination was added to the record. The Veteran was informed in a July 2021 waiver letter that he had 45 days to respond as to whether he would waive AOJ (Agency of Original Jurisdiction) review of the additional evidence. The Veteran was also informed that if he did not respond within 45 days, the claim would be remanded to the AOJ for the issuance of a SSOC. The Veteran did not respond, and the Veteran's claim was remanded to the AOJ. The RO confirmed and continued the Veteran's 10 percent evaluation prior to February 4, 2021 and 20 percent thereafter evaluation in an October 2021 supplemental statement of the case. However, the RO did not address the additional June 2021 VA examination added to the record as instructed by the October 2021 Board remand. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of bilateral shoulder impingment. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to a total disability evaluation based on individual unemployability is remanded The Veteran contends that he is entitled to TDIU. Specifically, in a November 2018 TDIU Application, the Veteran reported that his disabilities rendered him too disabled to work as of March 2015. As to the Veteran's claim of entitlement to a TDIU, the Board finds that this claim is inextricably intertwined with the Veteran's pending increased rating claims for shoulder impingement syndrome. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim. The matters are REMANDED for the following action: 1. The AOJ should review the record and consider all the available evidence, arrange for any further development deemed necessary, and readjudicate the remanded issues above on appeal considering all evidence added since the prior AOJ adjudication, to include the June 2021 VA examination. If any benefit sought on appeal remains denied, issue the Veteran and his representative an SSOC and allow the appropriate time for response. Then, return the case to the Board. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elliot Harris 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.