Citation Nr: 25009187 Decision Date: 07/14/25 Archive Date: 07/14/25 DOCKET NO. 17-43 417 DATE: July 14, 2025 REMANDED Entitlement to a rating in excess of 20 percent for left shoulder bursitis, tendonitis with clavicle deformity and arthritis (non-dominant) is remanded. Entitlement to service connection for a cervical spine disorder as secondary to left shoulder bursitis, tendonitis with clavicle deformity and arthritis is remanded. Entitlement to service connection for a right arm disorder a secondary to left shoulder bursitis, tendonitis with clavicle deformity and arthritis is remanded. Entitlement to service connection for a left arm disorder as secondary to left shoulder bursitis, tendonitis with clavicle deformity and arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from September 1976 to August 1979, and from October 1980 to July 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for 90 days following the hearing to allow the Veteran the opportunity to submit additional evidence. The Veteran did not submit additional evidence for consideration. In May 2022, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further evidentiary development, to include obtaining additional medical records, examinations and opinions. Updated VA treatment records were associated with the claims file and a June 2022 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain records on the Veteran's behalf. VA examinations were conducted in December 2022 and January 2023. In a March 2023 rating decision, the AOJ granted a 20 percent rating for left shoulder bursitis, tendonitis with clavicle deformity effective May 23, 2016. A supplemental statement of the case (SSOC) was issued in May 2023. In May 2023, the Veteran submitted a waiver of the 30 days allowed to certify his appeal to the Board and his right to submit additional evidence for consideration by the AOJ and requested that his case be immediately certified to the Board. A June 2023 rating decision found that there was clear and unmistakable error in the evaluation of left shoulder bursitis, tendonitis with clavicle deformity and arthritis (non-dominant) awarded a 20 percent rating beginning on May 29, 2015. In July 2023, after the AOJ's grant of a 20 percent rating for left shoulder bursitis from May 29, 2015, the Veteran's appeal was returned to the Board. The Board found that there had been substantial compliance with the prior remand directives. The Board also determined that as a schedular rating in excess of 20 percent was available for a shoulder disorder, and as the Veteran was presumed to be seeking the maximum available benefit for a disability, the Veteran's claim for an increase rating for his shoulder disability was still on appeal, citing AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2023, the Board issued a decision which denied service connection for a right arm disorder, a left arm disorder, and a cervical spine disorder as secondary to the Veteran's service-connected bursitis, tendonitis and deformity of the left clavicle, and denied entitlement to a rating in excess of 20 percent for left shoulder bursitis, tendonitis with clavicle deformity and arthritis (non-dominant). The Veteran subsequently appealed the September 2023 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2025 Joint Motion for Remand, the parties agreed to vacate the Board's February September 2023 decision in its entirety because the Board failed to made adequate efforts to obtain private treatment records and failed to consider whether Diagnostic Code 5051 was potentially applicable to the Veteran's appeal for a rating in excess of 20 percent for left shoulder bursitis, tendonitis with clavicle deformity and arthritis (non-dominant) based on evidence of record that the Veteran had undergone a left shoulder replacement. A March 2025 letter informed the Veteran that the Court had issued a decision that remanded (sent back) his case to the Board for readjudication and issuance of a new decision. The letter further informed the Veteran that he had 90 days from the date of the letter to submit additional argument and/or evidence in support of his appeal and/or request a hearing. An April 2025 response from the Veteran indicated that he wished for the Board to adjudicate his case without remand to the AOJ for review of the additional evidence that he was submitting in his appeal and that he waived any remaining time to submit additional evidence or argument. The Board will therefore proceed with its adjudication. 1. Entitlement to a rating in excess of 20 percent for left shoulder bursitis, tendonitis with clavicle deformity and arthritis (non-dominant) is remanded. 2. Entitlement to service connection for a cervical spine disorder as secondary to left shoulder bursitis, tendonitis with clavicle deformity and arthritis is remanded. 3. Entitlement to service connection for a right arm disorder as secondary to left shoulder bursitis, tendonitis with clavicle deformity and arthritis is remanded. 4. Entitlement to service connection for a left arm disorder as secondary to left shoulder bursitis, tendonitis with clavicle deformity and arthritis is remanded. The Veteran seeks service connection for a right arm disorder, a left arm disorder, and a cervical spine disorder. See May 2024 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). The Veteran contends this his right arm, left arm, and cervical spine disorders are due to his service-connected left shoulder bursitis, tendonitis with clavicle deformity and arthritis. See January 2022 VA Examination; January 2022 Hearing Transcript; August 2023 Informal Hearing Presentation; June 2025 Information Hearing Presentation. The Veteran also seeks entitlement to a rating in excess of 20 percent for his service connected left shoulder bursitis, tendonitis and with clavicle deformity and arthritis. The Veteran contends that his left shoulder disorder has worsened over time and is more disabling than reflected by the rating currently assigned. Id. The Veteran's left shoulder bursitis is currently rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. See June 2023 Rating Decision - Codesheet. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Id. In a February 2025 Joint Motion for Remand, the parties agreed that the evidence of record indicated that private treatment records associated with degenerative disc disease of the cervical spine, to include a cervical fusion, were outstanding. The Veteran testified at a January 2022 hearing that VA providers had referred him to a private hospital where they tested the Veteran's nerves and determined that damage to the nerves in the Veteran's neck cause the problem in the Veteran's right arm. The parties agree that, with respect to all issues on appeal, inadequate efforts were made to obtain these private treatment records, to include providing the necessary release form to the Veteran and notification that if such release is not returned, to inform the Veteran that he should obtain and submit such records himself, in accordance with the provision of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The parties also agreed that in denying entitlement to a rating in excess of 20 percent for left shoulder bursitis, tendonitis with clavicle deformity and arthritis, the Board failed to address the applicability of Diagnostic Code 5051, which was potentially applicable based on the evidence indicating Appellant had shoulder replacement surgery, citing 38 C.F.R. § 4.71a and Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). The Board notes here that as there are private records still outstanding, consideration of whether Diagnostic Code 5051 is potentially applicable to the Veteran's service-connected shoulder disorder based on the evidence of record is premature, as the record is not complete. The matters are REMANDED for the following action: The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal, particularly but not limited to treatment records produced by or associated with Tampa Bay General Hospital. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cusker, Associate 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.