Citation Nr: 1750194 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 13-30 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a right shoulder condition. 4. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 for convalescence of a service-connected disability. 5. Entitlement to automobile and adaptive equipment or adaptive equipment only. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The veteran served on active duty from June 1980 to September 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered these matters in May 2015, when it remanded for additional development. The Board's May 2015 remand included the issue of service connection for a left knee disability. Service connection for this disability was established via a March 2016 rating decision. This was a full grant of the benefit sought. As such, that issue is no longer on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the Board's May 2015 remand, the Veteran was scheduled for VA examination to determine the current severity of his service-connected right knee disability, and the nature and etiology of his claimed bilateral shoulder disabilities. These examinations were conducted in October 2015. With regard to the issue of a higher rating for the right knee, the Board notes that subsequent to the October 2015 VA examination, the Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. In this case, the VA examination report includes only active range of motion findings and do not include range of motion findings for passive range of motion. They also do not contain results in both weight-bearing and nonweight-bearing positions. As the previous October 2015 examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. Recently, the Court held that, in the context of increased rating issues involving § 4.40, 4.45, a medical opinion that "cannot be provided without resort to speculation" is adequate when it is "clear that [it] is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner." Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). With regard to the issue of service connection for bilateral shoulder disabilities, the October 2015 VA examination shows diagnoses of right shoulder status post total arthroplasty with residual scar and left shoulder rotator cuff tendonitis. For both disabilities, the examiner opined that they were less likely than not related to service. The examiner's sole rationale was that a review of medical records did not show treatment for right or left shoulder disability in service. This opinion is based solely on the absence of evidence of treatment in service and, significantly, lacks a clear medical rationale. Furthermore, the examiner did not address the Veteran's assertion that his bilateral shoulder disabilities began in 1984 during service. For these reasons, an adequate opinion is not of record and another remand is necessary to assist the Board in the adjudication of these issues. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (stating that most of the probative value of a medical opinion comes from its reasoning); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical examiner must support a conclusion with an analysis that is adequate for the Board to consider and weigh against contrary opinions). VA treatment records were last associated with the claims file in March 2016. See 03/16/2016 CAPRI, Legacy Content Manager. On remand, the AOJ should obtain any outstanding VA treatment records. The issues of entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 for convalescence of a service-connected disability and entitlement to automobile and adaptive equipment or adaptive equipment only will be deferred pending adjudication of the issues remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing #1 above, schedule the Veteran for a VA orthopedic examination with a clinician with appropriate expertise in order to ascertain the severity of his service-connected right knee disability. The virtual folder should be made available to and be reviewed by the examiner to become familiar with the Veteran's pertinent medical history. Any medically indicated tests should be accomplished, and reported. With regard to the right knee, range of motion testing should be accomplished. The examiner must test and record the range of motion for BOTH knees in active motion, passive motion, weight-bearing, and nonweight-bearing. Review the prior VA examination reports. Explain whether the above tests would be largely similar if conducted at that time and if not, how they would have differed. If there is a limit to how far back in time such retroactive evaluations would be valid, please state so and explain. The examiner should report functional impairment due to incoordination, weakened movement excess fatigability, pain or flare-ups in terms of additional degrees of limitation of motion. The examiner is advised that the Veteran is competent to report limitation during flare-ups. The examiner should also report whether there is instability or subluxation and express an opinion as to the severity of such instability or subluxation. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Additionally, if any opinion, to include measuring ROM loss during flare-ups/repetitive motion, cannot be provided, the clinician is to provide an explanation as to why. 3. Additionally, schedule the Veteran for a VA orthopedic examination with a clinician with appropriate expertise in order to ascertain the etiology of his claimed bilateral shoulder disabilities. Review of the claims file should be noted in the examiner's report. The examiner(s) should respond to the following: For the current left and right shoulder disabilities, is it at least as likely as not (probability of 50 percent or higher) related to the Veteran's active service? The examiner should consider and address the Veteran's assertions that his claimed bilateral shoulder disabilities began in 1984 during service and that they have worsened since then. The examiner should provide a comprehensive medical rationale for any opinion offered. In forming an opinion, the examiner should not rely solely on the absence of corroborating evidence (of either treatment or a diagnosis). Rather, the examiner should consider the extent to which there is a medical nexus between any in-service symptoms and a current disability. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 4. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim 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 2014). _________________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2016).