My client sought higher initial evaluations for a right pectoralis tendon injury affecting shoulder movement and for the associated surgical scar. The record identified several private treatment sources, but VA had not satisfied its pre-decision duty to assist in obtaining the outstanding records. I developed the appeal around that specific failure.
Listening and tracing the treatment sources
I listened to my client and reviewed the private medical documents submitted with the claim. Those records identified several providers and facilities, including orthopedic, hospital, and urgent-care sources. They supplied information such as names, addresses, and telephone numbers.
I compared those references with the development reflected in the claims file. The question was whether VA had followed up on identified, potentially relevant records before deciding the claim. That required examining the documents already provided, not assuming the claimant needed to repeat every provider’s name in a separate request.
The appeal concerned the completeness of the record used to evaluate the shoulder-related disability and scar. It did not depend on claiming in advance that the missing records would establish a specific higher rating.
Developing the legal memo
I prepared a legal memo connecting the identified sources to VA’s obligation to make reasonable efforts to obtain relevant private records under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c)(1). The motion also addressed the Board’s responsibility to correct a pre-decision duty-to-assist error.
The argument was grounded in the information already available to VA. I identified the treatment sources and explained why the failure to obtain the outstanding records required corrective action. The applicable rules can require claimant cooperation and authorization; the motion addressed the failure shown by this particular record.
A partial-remand win on the rating issues
I secured a CAVC partial remand concerning the higher initial ratings for the pectoralis-tendon disability and the surgical scar. The favorable Board findings, including the existing shoulder-related rating award and tinnitus grant, were not the target of the appeal.
The hearing-loss issues were not pursued, and a separate shoulder condition already remanded by the Board was outside the Court’s review of the final denials.
Why the details of development matter
This result required further proceedings; it did not itself assign a higher rating or grant a compensable scar evaluation. The appellate victory came from listening to the client, following the provider references, and presenting a legal memo that connected a concrete records-development failure to the remedy the law required.
Discuss your Board appeal
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For more about this issue, read our related appeal guide. The ordinary Court filing deadline is 120 days after notice of the Board decision is issued. Contacting a law firm does not extend that deadline.
Past results do not guarantee a similar outcome. A remand requires further proceedings and does not itself award benefits.
