Citation Nr: 1033972 Decision Date: 09/10/10 Archive Date: 09/21/10 DOCKET NO. 08-20 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased rating for residuals of a right shoulder joint separation with degenerative joint disease, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The Veteran had active service from September 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In a December 2006 rating decision, the RO denied entitlement to a rating in excess of 30 percent for the service-connected disability. In a July 2007 rating decision, the RO granted service connection for arthritis of the right shoulder, assigning a noncompensable (0 percent) rating. The Veteran perfected an appeal of the 30 percent rating and disagreed with the noncompensable rating for arthritis. The RO has now treated the claims on appeal as one issue, and the Board continues that characterization of the issue as it accurately addresses the two ratings assigned for the various aspects of the service-connected right shoulder disability. In August 2009, the Veteran testified before the Board. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Prior to final adjudication of this appeal upon the merits, additional development is required as the medical record is inadequate for rating purposes. Specifically, during the pendency of this appeal, the RO obtained VA examinations dated in November 2006 and August 2008 in which the examiners evaluated the range of motion of the right shoulder. In the reports, each examiner opined that there could be additional functional impairment, but the examiner was unable to estimate the additional loss without resort to speculation. The examiners, however, did not provide any indication as to why they were not capable of making a determination nor what was so outside of the norm that speculation was required. Accordingly, the "opinions" provided cannot be accepted as either positive or negative evidence and are inadequate for rating purposes. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the United States Court of Appeals for Veterans Claims (Court) specifically found that a medical opinion that contains only data and conclusions is accorded no weight. The Court has previously found that an opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Bloom v. West, 12 Vet. App. 185, 187 (1999). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that in evaluating a service-connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. Because the examiners in this case do not explain why additional functional loss could not be determined without resort to speculation, the reports do not adequately address functional impairment. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (regarding speculative opinions). Further, although examiners referred to the Veteran as being right-handed in both reports, during his hearing before the Board, the Veteran testified under oath that he is left-handed. As such, the examination reports include inaccurate information and are inadequate upon which to base a rating. Therefore, upon remand, the Veteran must be afforded an examination in which an examiner addresses the severity of the right shoulder disability, to include range of motion testing. The examiner must adequately address functional impairment/loss. The examiner must specifically clarify whether the Veteran is right or left handed and address the Veteran's testimony before the Board that he is left-handed. Recently, the Court held, essentially, that the issue of a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the RO separately adjudicated the issue of TDIU in an October 2008 rating decision and the Veteran has not appealed that decision. Thus, that aspect of the current claim is no longer before the Board for adjudication. If, however, the medical evidence developed reflects a total disability due to the right shoulder disability, the appropriate rating will be assigned notwithstanding the previous denial of TDIU. The claims file contains an August 2008 non-VA opinion contained in the Veteran's Social Security Administration (SSA) records that essentially indicates that the Veteran is not unemployable due to the right shoulder disability. Although there are August 2008 VA examinations reports that contain opinions regarding employability, they are not supported by any rational. Upon remand, the examiner should address whether the service-connected right shoulder disabilty causes the Veteran to be unemployable. The examiner should provide adequate rationale for any opinion provided. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Appropriate action must be taken based on the opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Then, schedule the Veteran for an examination for the purpose of determining the current severity of his service-connected right shoulder disability. The examiner should clarify whether the Veteran is right or left handed and specifically address the Veteran's testimony before the Board that he is left-handed. The claims file should be sent to the examiner. The examiner should note all relevant right shoulder findings. The examiner should complete a range of motion study for the right shoulder, to include addressing functional impairment/loss under Deluca. Any additional limitation of motion in any of the ranges of motion should be expressed in degrees. The examiner should then address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability renders him unable to secure or follow a substantially gainful occupation. The examiner should provide rationale for all opinions expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, the claim must be readjudicated on the basis of all of the relevant evidence of record and all governing legal authority, including all appropriate rating action based on the opinion with respect to employability. If the benefit sought on appeal is not granted, the Veteran and his representative must be provided with a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Kristi Barlow Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2009).