Citation Nr: 1756903 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-09 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected residuals of a left acromioclavicular (AC) joint separation of the left shoulder. 2. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a left knee injury with chronic pain. 3. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from October 1978 to April 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in June 2011 and April 2013 for further development. The Board notes that the May 2009 rating decision also included a denial of an increased rating for a left shoulder scar. This issue was included in the Veteran's notice of disagreement and in the February 2010 statement of the case. However, in the Veteran's March 2010 substantive appeal, he only appealed the issues of entitlement to increased ratings for his left AC joint separation of the left shoulder and residuals of a left knee injury with chronic pain. The Veteran presented testimony at a Board hearing in March 2011. A transcript of the hearing is associated with the Veteran's claims folder. The issue of entitlement to an entitlement to an increased rating for residuals of a left acromioclavicular (AC) joint separation of the left shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's residuals of a left knee injury with chronic pain are manifested by chronic pain and limitation of motion. They are not manifested by leg flexion limited to 30 degrees; ankylosis; malunion of the tibia and fibula; limitation of extension; or recurrent subluxation or lateral instability. 2. The medical and other evidence of record does not indicate the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected residuals of a left knee injury with chronic pain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Codes 5010, 5256-5262 (2016). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In an April 2009 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2016). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2016). VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2016). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given VA examinations in April 2009, January 2010, July 2011, January 2015, and September 2016, which are fully adequate. The examiners either reviewed the claims file in conjunction with the examination, or they were made aware of the Veteran's medical history by the Veteran himself. The duties to notify and to assist have been met Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Pursuant to Diagnostic Code 5260, a 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent rating is warranted for leg flexion limited to 30 degrees. A 30 percent rating is warranted for leg flexion limited to 15 degrees. Pursuant to Diagnostic Code 5261, a 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent rating is warranted for leg extension limited to 15 degrees. A 30 percent rating is warranted for leg extension limited to 20 degrees. A 40 percent rating is warranted for leg extension limited to 30 degrees. A 50 percent rating is warranted for leg extension limited to 45 degrees. Separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both codified at 38 C.F.R. §4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9- 2004. Pursuant to Diagnostic Code 5259, a 10 percent rating is warranted for the symptomatic removal of semilunar for cartilage. In addition, the Board notes that ankylosis of the knee will be rated as 60 percent disabling if at an extremely unfavorable angle, in flexion at an angle of 45 degrees or more. A 50 percent rating will be assigned if the knee is in flexion between 20 degrees and 45 degrees. The disability will be rated at 40 percent if it is in flexion between 10 degrees and 20 degrees. A 30 percent rating will be assigned if there is ankylosis at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Impairment of the tibia and fibula will be rated as 40 percent disabling where there is a nonunion, with loose motion, requiring brace. A malunion of the tibia and fibula will be rated as 30 percent disabling if there is marked knee or ankle disability, 20 percent disabling if there is moderate knee or ankle disability, and 10 percent disabling if there is slight knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The law permits separate ratings for arthritis and instability of a knee. Specifically, the VA General Counsel has held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 because the arthritis would be considered an additional disability warranting a separate evaluation even if the limitation of motion was not compensable. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). Likewise, the VA General Counsel has also held that, when x-ray findings of arthritis are present and a Veteran's knee disability is evaluated under Code 5257, the Veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98 (Aug. 14, 1998). Pursuant to 38 C.F.R. § 4.71a (Diagnostic Code 5257), a rating of 10 percent is warranted when the Veteran experiences slight subluxation or lateral instability. A rating of 20 percent is warranted when the Veteran experiences moderate subluxation or lateral instability. A rating of 30 percent is warranted when the Veteran experiences severe subluxation or lateral instability. Dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet.App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Left knee The Veteran underwent a VA examination in April 2009. The claims file was not available for the examiner to review. The Veteran stated that he has had knee pain since his in-service injury. He reported current, intermittent throbbing pain of the suprapatellar that he rated a 7/10 in severity. The Veteran denied any exacerbating or relieving factors. There was no locking of the knee but he complained of swelling and instability. He had not had any surgery but he had undergone a course of physical therapy, with mild relief. The Veteran was unemployed. In terms of activities of daily living, the Veteran stated that he has difficulty doing yardwork. He reported experiencing one flare-up every three months, during which he must stay off of his feet. He also reported that he wore a knee brace. Upon examination, he had full extension (to 0 degrees) and flexion to 110 degrees with end-of-range pain. There was no ligamentous laxity in any direction. There was mild crepitus. McMurray test was negative. There was no erythema, warmth to touch, joint effusion, or swelling in the knee. He was diagnosed with degenerative joint disease of the knee. The Veteran underwent another VA examination in January 2010. The claims file was not available for review. The Veteran reported constant left knee pain that ranged from 3/10 to 6/10 in severity depending on his activity. He reported swelling, locking, and instability. The Veteran reported that he is employed as a security guard. He was able to perform his job appropriately. He denied being affected in terms of activities of daily living. He denied flare-ups, stating that his symptoms were activity-related) . He used a left knee brace at times, but no other assistive devices. Upon examination, the Veteran achieved full extension to 0 degrees. Flexion was to 124 degrees with end-of-range pain. Range of motion was not additionally limited by repetitive use. He had tenderness to palpation over the bilateral femoral condyle and over the superior pole of the patella. There was no knee warmth redness swelling, or crepitus. He had normal anterior drawer test, posterior drawer test, McMurray test, and Lachmann test. The left knee was stable to varus and valgus stressing. The Veteran underwent a VA examination in July 2011. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported left knee pain on a daily basis. He rated the average severity of the pain to be 8/10. He reported swelling, locking, and instability of the knee. He reported that he takes Motrin on most days (up to 3 times per day), with mild improvement in his symptoms but not complete resolution. He reported that he worked as a security guard and that his work is affected at times because he is not as productive as he would be otherwise. He reported difficulty with prolonged standing. He reported difficulty with routine chores around the house. He denied any flare-ups. Upon examination, the Veteran achieved full extension to 0 degrees with flexion to 115 degrees and pain throughout the entire range of motion which was more profound at the end of range. There was no additional limitation of motion following repetitive use. He did have crepitus and bony hypertrophy in the left knee with slight swelling but no warmth or redness. The knee had normal anterior drawer test, posterior drawer test, McMurray's test, and Lachman's test. The knee was stable to varus and valgus stressing. The tenderness over the left knee involved the patellofemoral joint. X-rays revealed left knee reveal patellofemoral spurring with sclerosis but no other abnormalities. The Veteran was diagnosed with degenerative joint disease of the left knee involving the patellofemoral joint. The Veteran underwent another VA examination in January 2015. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported progressively increasing pain since his in-service injury. He also reported experiencing activity-related flare-ups that were manifested by decreased tolerance for weight bearing. He also reported difficulty exercising and using stairs. He could no longer run. Upon examination, the Veteran achieved full range of motion (flexion to 140 degrees and extension to 0 degrees). There was pain noted during flexion; but it did not result in functional loss. There was also evidence of pain on weightbearing as well as objective evidence of diffuse tenderness to palpation. Range of motion was not additionally limited following repetitive use testing, or due to pain, weakness, fatigability, or incoordination. The examiner was unable to render an opinion regarding whether there is additional limitation of motion due to pain, weakness, fatigability or incoordination during a flare-up. Muscle strength testing was normal (no atrophy). There was no history of recurrent subluxation, lateral instability, or effusion. The Veteran reported that he regularly wears a left knee brace. There was no evidence of crepitus. Regarding functional impact, the examiner noted that the Veteran would have difficulty with prolonged standing and walking in his security job. The examiner opined that the Veteran's service connected disabilities would prevent him from performing heavy physical labor involving heavy lifting and bending. He would not, however, be restricted from performing lighter job duties of more sedentary work such as limited walking and light lifting. Upon VA examination in September 2016, the Veteran reported flare-ups manifested by pain and weakness. He stated that the left knee disability prevents him from engaging in extended standing or walking. Upon examination, the Veteran achieved full extension (to 0 degrees) and achieved flexion to 100 degrees. There was objective evidence of pain with weightbearing; and objective evidence of crepitus. There was no objective evidence of localized tenderness or pain on palpation. There was no additional limitation of motion following repetitive use. The examiner stated that functional ability was limited do to pain, fatigue, and lack of endurance. However, he then stated that the functional loss was 0-100 degrees of flexion (unchanged from the initial findings). The examiner opined that during flare-ups, functional loss would include range of motion limited to 0-80 degrees. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation or lateral instability. The examiner noted that the Veteran constantly used a cane for his knees (right and left); and that he used a brace for his back. Analysis The Veteran's service-connected residuals of a left knee injury with chronic pain have been rated by the RO under the provisions of Diagnostic Codes 5010-5260. They have been rated as 10 percent disabling based on x-ray evidence of degenerative changes with slight limitation of motion. In order to warrant a rating in excess of 10 percent, the disability must be manifested by leg flexion limited to 30 degrees (Diagnostic Code 5260); ankylosis at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees (Diagnostic Code 5256); or malunion of the tibia and fibula with a moderate knee or ankle disability (Diagnostic Code 5262). With respect to range of motion, the Board notes that at the Veteran's VA examinations, he had flexion to 110 degrees, 124 degrees, 115 degrees, 140 degrees, and 100 degrees. Once again the Board recognizes that pain was noted at various points in the Veteran's range of motion. Sometimes the Veteran experienced pain at the end of the range of motion. At other times, pain was noted throughout the range of motion. However, the examiners consistently noted that range of motion was not additionally limited by repetitive use, or due to pain, weakness, fatigability or incoordination. The January 2015 VA examiner was not able to render an opinion (without resorting to speculation) regarding additional limitation of motion during flare-ups. He noted that although the Veteran experienced pain during range of motion testing, it did not result in functional loss. The September 2016 VA examiner opined that during a flare-up, the Veteran's usual range of motion (0-100 degrees) would be further reduced to 0-80 degrees. Consequently, even during a flare-up, the Veteran's range of motion has not been shown to be limited to the point where a rating in excess of 20 percent would be warranted. There is no medical evidence to show that there is any additional loss of motion of the left knee due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. Additionally, the Board notes that there has been no evidence of ankylosis, or malunion of the tibia and fibula. A separate rating for limitation of extension is not warranted in so far as the Veteran achieved full extension at all five VA examinations. Finally, the Board notes that a separate rating is not warranted for subluxation or lateral instability. The Board recognizes that the Veteran stated that he wears a knee brace. Outpatient treatment records reflect that he inquired about a knee brace in December 2015, noting that he had used one in the past with some relief. In February 2016, he was advised that he could pick one up (Caseflow, 5/2/16, pgs. 23-27). However, there was no finding of instability. To the contrary, all five VA examiners specifically found that "there was no ligamentous laxity in any direction" (April 2009); "the left knee was stable to varus and valgus stressing" (January 2010 and July 2011); and "no history of recurrent subluxation or lateral instability" (January 2015 and September 2016). In the absence of any objective evidence of subluxation or lateral instability, the Board finds that a separate rating for instability is not warranted. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 10 percent for residuals of a left knee injury with chronic pain must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19 (2016). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran here is service connected for residuals of a left AC joint separation of the left shoulder, evaluated as 20 percent disabling; a lumbosacral strain, evaluated as 20 percent disabling; residuals of a left knee injury, evaluated as 10 percent disabling; a left shoulder scar, evaluated as 10 percent disabling; right knee patellofemoral syndrome, evaluated as 10 percent disabling; a right hip strain with limitation of extension, evaluated as 10 percent disabling; radiculopathy of the left lower extremity, evaluated as 10 percent disabling; a right hip strain with limitation of flexion, evaluated as 0 percent disabling; and a right hip strain associated with residuals of a left knee injury with chronic pain, evaluated as 0 percent disabling. His combined rating is therefore 60 percent. See 38 C.F.R. § 4.25. Thus, the Veteran does not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). However, the Board must still determine whether the Veteran's service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. The evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities. It appears that the Veteran is currently employed. At his January 2010 and July 2011 VA examinations, the Veteran stated that he was working as a security guard. At his January 2015 VA examination, the examiner opined that the Veteran would have "difficulty with the occasional lifting and reaching required in his security job." An April 2016 outpatient treatment report reflects that the Veteran is off of work on Mondays and Tuesdays (Caseflow, 5/2/16, p. 2). Consequently, it appears that the Veteran was still employed as late as April 2016. The Veteran submitted a June 2016 statement from his wife in which she stated that the Veteran takes medicine every day due to knee, shoulder, and back pain. She stated that he can hardly get out of bed due to back pain. The January 2015 VA examiner (the only examiner to render an opinion on the issue) stated that the Veteran's service connected disabilities would prevent him from performing heavy physical labor involving heavy lifting and bending. He would not, however, be restricted from performing lighter job duties of more sedentary work such as limited walking and light lifting. A March 2016 outpatient treatment report reflects that that the Veteran's current employment involves a "lot of sitting." (Caseflow, 5/2/16, p. 12). Consequently, it appears that the Veteran is not only employed; but that he is employed in a mostly sedentary job. The Veteran has submitted no evidence to show that he would be unable to perform jobs that do not require extensive standing or heavy lifting. There is no persuasive evidence of record demonstrating or suggesting that the Veteran is unemployable as a result of his service-connected disabilities. In sum, there is no persuasive evidence of record demonstrating that the Veteran's service-connected disabilities alone render him unable to obtain and retain substantially gainful employment, nor is the evidence in a state of equipoise on that question. As such, the Veteran's claim for a TDIU is denied. ORDER Entitlement to a rating in excess of 10 percent for residuals of a left knee injury with chronic pain is denied. Entitlement to a TDIU is denied. REMAND The Board remanded the issue of entitlement to an increased rating for a left shoulder disability so that the Veteran could undergo another VA examination. Specifically, the Board noted that the July 2011 VA examiner did not further identify whether the Veteran experienced any additional range-of-motion loss, of either service-connected joint disability due to weakened movement, excess fatigability, or incoordination, as requested in the June 2011 remand instructions. The Board noted that it appears that the VA examiner did not fully consider additional limitations of function, to include limitation of motion, of the Veteran's service-connected left shoulder and left knee disabilities as a result of such symptoms as pain, weakened movement, excess fatigability, incoordination, or during flare-ups, as required by the Court in DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran underwent another VA examination in January 2015. However, while the VA examiner noted that the Veteran experiences flare-ups, he stated that he was unable to render an opinion regarding whether there is additional limitation of motion due to pain, weakness, fatigability or incoordination during a flare-up. His reasoning was that the Veteran was not experiencing a flare-up at the time of the examination. Pursuant to Sharp v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1266, an examiner cannot decline to estimate additional limitation of motion on flare-up solely because a flare-up was not in progress at the examination. Consequently, the Board finds that another examination is warranted. The VA examiner should attempt to estimate additional functional loss due to flare-ups, and this additional functional loss should be expressed in terms of the degree of additional range-of-motion loss. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to assess the severity of his service-connected left shoulder disability. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should identify any and all residual manifestations found to be associated with the Veteran's service-connected left shoulder disability and fully describe the extent and severity of those manifestations. The examiner should specifically address the following: a) Report the Veteran's range of motion of his left shoulder in degrees, and state the point at which any pain is demonstrated. b) Comment on whether and to what extent there is incoordination, weakened movement, or excess fatigability on use of the left shoulder, including during flare-ups. Specifically, indicate whether there is likely to be any limitation of motion due: to (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain; or during flare-ups. c) Give an opinion as to whether pain could significantly limit functional ability, including limitation of motion, during flare-ups or when the left shoulder is used repeatedly over a period of time. This determination should also be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner should note that it is insufficient not to provide such an estimate solely on the basis that the Veteran was not experiencing a flare-up at the time of the examination. All limitation of function, including due to pain on use, must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. d) Determine whether the Veteran has any favorable or unfavorable ankylosis of the left shoulder. e) Determine whether there is other impairment of the humerus, (i.e., loss of head, nonunion, fibrous union, malunion, recurrent dislocation) or of the clavicle or scapula (i.e., dislocation, nonunion, malunion). 2. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs