96-07 870
96-07 870
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served active duty 1975–1981 and 1984–1994 and appealed rating decisions for right shoulder bursitis and right shoulder acromioclavicular (A/C) separation.
- RO awarded a separate 10% rating for right shoulder A/C separation effective January 1, 1995; Veteran sought higher initial ratings for bursitis and A/C separation.
- The claims have a lengthy procedural history with multiple remands; most recent Board remand in June 2012 requested additional development.
- The Board found VA did not substantially comply with the June 2012 remand because pertinent VA treatment records (including Northampton VAMC and Springfield CBOC records and March 2013 records) were not associated with the claims file and some identified facilities’ records were not requested.
- The last VA shoulder exam was September 2014; the Board ordered VA to obtain the missing records, associate them with the file, provide the complete file to a new examiner, and perform a new examination addressing attribution of symptoms.
- The Board remanded the appeal (did not decide the merits) and directed readjudication after development; claimant and representative to be furnished a supplemental statement of the case if benefits are not granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to >10% for right shoulder bursitis | Veteran seeks higher initial rating for right shoulder bursitis based on ongoing symptoms and treatment | VA had previously denied higher rating and relied on existing record | Remanded for further development (obtain missing VA records and new exam); no final decision on rating yet |
| Whether Veteran is entitled to >10% for right shoulder A/C separation | Veteran seeks higher initial rating for A/C separation | VA previously granted 10% from 1/1/1995; argued record was adequate | Remanded for further development and new exam to assess current severity and symptom attribution; no final decision yet |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (Board remand requires substantial compliance by VA)
- Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA constructive possession of its medical records requires obtaining pertinent records)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence after remand)