Citation Nr: 1319929 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 06-06 972A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine (back disability). 2. Entitlement to an initial disability rating in excess of 20 percent for degenerative joint disease of the left shoulder (left shoulder disability). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to June 1992, and September 2004 to January 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The May 2005 rating decision granted service connection for degenerative joint disease of the left shoulder. A noncompensable rating was assigned, effective January 21, 2005. Service connection was also granted for degenerative joint disease of the lumbar spine. A 10 percent rating was assigned, effective January 21, 2005. The Veteran appealed the initial ratings assigned. In a July 2011 rating decision, the Veteran's rating for his back disability was increased to 20 percent disabling, effective January 21, 2005. The Veteran continued his appeal. In a September 2011 Board decision, a disability rating in excess of 20 percent for his back disability was denied. The Board, however, awarded a 20 percent initial disability rating for the Veteran's left shoulder disability. The Veteran appealed the September 2011 Board decision to the United States Court of Appeals for Veterans Claim (Court). In August 2012, the parties filed a joint motion for remand (JMR) with the Court, following which the Court issued an Order vacating the Board's September 2011 decision to the extent that it denied ratings in excess of 20 percent each for his service-connected back and left shoulder disabilities. The case has since been returned to the Board for action consistent with the JMR. 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 In the August 2012 JMR, the parties agreed that the Board's September 2011 decision was flawed as it relied on inadequate VA examinations. The Veteran's representative specifically indicated that the VA examinations of record failed to adequately describe the Veteran's functional loss during flare-ups. The parties agree that the claims should be remanded for clarification of the VA examination reports. The Veteran was provided VA examinations in March 2005 and November 2010. In the March 2005 VA examination report, the examiner did not discuss whether the Veteran experienced flare-ups in the back and left shoulder. The November 2010 VA examiner noted that the Veteran experienced flare-ups of symptoms in both his back and left shoulder. The examiner did not, however, address the functional impairment during flare-ups in terms of range of motion loss. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 (2012) concerning the effects of the disability on the Veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2012). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In light of the deficiencies described in the JMR, the Board finds that the Veteran's claim should be remanded again and he should be afforded a new examination to determine the severity of his back and left shoulder disabilities-including any functional impairment caused by the DeLuca factors listed above. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any outstanding treatment records related to the Veteran's back and left shoulder disabilities. 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of his back and left shoulder disabilities. The claims folder, to include any relevant records in Virtual VA, should be forwarded to the examiner for review, and the examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report. All indicated testing should be carried out and the results recited in the examination report. The examiner should identify all currently present back and shoulder symptoms and their severity. The results of range of motion testing should be reported. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 3. Afterwards, the RO/AMC should review the claims file to make certain that the aforementioned development and remand instructions have been fully and properly executed. Any noncompliance found should be rectified with the appropriate development. 4. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC should readjudicate the issues on appeal. All applicable laws and regulations should be considered. If the benefits sought on appeal remain denied, the claimant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).