Citation Nr: 23024136
Decision Date: 04/26/23	Archive Date: 04/26/23

DOCKET NO. 17-03 193
DATE: April 26, 2023

REMANDED

Entitlement to a disability rating higher than 20 percent prior to June 14, 2021, and, in excess of 30 percent thereafter for right shoulder tendonitis and arthritis ("right shoulder disability") is remanded.

REASONS FOR REMAND

The Veteran testified before the undersigned Veterans Law Judge in an October 2019 Travel Board Hearing.  A transcript of that hearing has been associated with the file.

The Board remanded the matter three times, in November 2019, May 2021, and October 2022.  Unfortunately, another remand is required as evidence was received by the Agency of Original Jurisdiction (AOJ) after the appeal was transferred to the Board and a waiver was sought.  Of note the Board remanded the matter in October 2022 for a similar set of circumstances.  

After the issuance of the November 2022 Supplemental Statement of the Case (SSOC), the most recently issued SSOC on file, a Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ) was performed, and the examination was made part of the file in January 2023.  The Board acknowledges that the focus of the examination was the Veteran's left shoulder.  However, the VA examiner did note that she was unable to test the right shoulder joint as the "joint is damaged."  Given the increased rating claim on appeal for the right shoulder VA informed the Veteran by way of a letter dated February 2023 that a VA examination was not considered by the AOJ and that if no response was received within 45 days, VA would assume that the Veteran did not want to waive his right to AOJ review, and the Board would remand the matter.

The Veteran did respond within the prescribed time, and he requested that the matter be remanded back to the AOJ for review of the additional evidence that was submitted in his appeal.  See March 2023 Correspondence.  As such, there is no basis for a waiver of RO consideration of the additional evidence. 

Accordingly, pursuant to 38 C.F.R. § 19.31, this issue must be remanded for the issuance of an SSOC.

The matter is REMANDED for the following action:

1. The AOJ should review the expanded record, to include consideration of the additional evidence associated with the claims file since the issuance of the November 2022 supplemental statement of the case and determine if the appeal can be granted.  

If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case.

2. After an opportunity to respond, the case should be returned to the Board for appellate review. 

 

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Talamantes, 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.