Citation Nr: 1752048 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-21 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable evaluation for a right shoulder injury, status post-surgery, prior to January 8, 2014, and in excess of 10 percent since January 8, 2014, excluding the period from September 29, 2015, to November 1, 2015. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had honorable active service in the United States Navy from July 1989 to July 2009. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, service connection was granted for a right shoulder injury, status post-surgery, and a noncompensable (0 percent) evaluation was assigned effective August 1, 2009. The Veteran appealed the underlying decision in a Notice of Disagreement received in November 2009. In his July 2011 substantive appeal, the Veteran requested a hearing before the Board; however, in a June 2014 written statement, he withdrew the request. Therefore, the hearing request is withdrawn. See 38 C.F.R. § 20.704(e) (2017). In a January 2014 decision, the RO increased the evaluation for the Veteran's right shoulder disability from noncompensable to 10 percent disabling, effective January 8, 2014. Specifically, attempts to obtain additional records were to be made and the Veteran was to be afforded a new VA examination to determine the current nature and severity of his service-connected right shoulder disability. In a March 2016 decision, the RO assigned a temporary total evaluation for the Veteran's right shoulder disability, effective from September 29, 2015, to November 1, 2015. A 10 percent evaluation was assigned effective from November 1, 2015. This case was most recently before the Board in July 2016, when the Board remanded the issue for further development. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The U. S. Court of Appeals for Veterans Claims (Court) has held that a VA examination of the joints must, wherever possible, include range of motion testing, "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing." In addition, if applicable the examiner must provide range of motion findings for the "opposite undamaged joint." The Court further held that that if for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). The Veteran was most recently afforded an examination to determine the degree of severity of his right knee disability in September 2016. The examiner indicated that the Veteran had active motion of the right shoulder from 0 to 180 degrees flexion and abduction with pain, 0 to 90 degrees external rotation, and 0 to 60 degrees internal rotation. The examiner indicated that the Veteran had normal active motion of the left shoulder with pain. The examiner did not perform all of the required range of motion testing or explain why the testing was not completed. There was no testing of the range of motion of the shoulders for passive motion or non-weight bearing. Thus, the examination report is not adequate for rating purposes. Therefore, the Board finds that the originating agency failed to substantially comply with the July 2016 remand directives. Such noncompliance is error on the part of the originating agency. Moreover, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the claim must be remanded for an adequate VA examination. Since a remand is required, development to obtain any outstanding records pertinent to the Veteran's claim should also be completed while the case is in remand status. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C. for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. The Veteran should be scheduled for a VA examination by an examiner with sufficient expertise to determine the current degree of severity of the Veteran's service-connected right shoulder disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The AOJ should ensure that the examiner provides all information required for rating purposes. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. If any opinion cannot be offered without resort to mere speculation, the examiner should explain in full why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 3. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. The AOJ should also undertake any additional development deemed necessary. 5. Then, the AOJ should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is recertified for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND 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). _________________________________________________ B. MULLINS 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).