Citation Nr: 1800150 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-11 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected residuals of left clavicle fracture. 2. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1979 to December 1982, with subsequent service in the Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. During the pendency of the appeal, the RO issued an August 2016 rating decision, which granted an increased initial rating from 10 percent to 20 percent for service-connected residuals of left clavicle fracture. As this does not constitute a full grant of the benefits sought on appeal, this claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). With regard to the claim for TDIU listed on the cover page, the United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if a claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. Here, the Veteran submitted a letter to VA in July 2016 requesting an application for individual employability. In his July 2016 VA examination, the Veteran reported having to quit his job at Walmart because he "just couldn't do it anymore." This evidence reasonably raises the issue of TDIU. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regarding the issue of a rating in excess of 20 percent for residuals of left clavicle fracture, the Board finds the July 2016 VA examination inadequate. Specifically, the examiner noted left shoulder pain during the examination that caused functional loss, but did not indicate the additional range of motion loss in degrees due to pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (indicating an examination report that does not address additional range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, or flare-ups is inadequate for rating purposes). In addition, the examiner stated she was unable to opine without speculation whether pain, weakness, fatigability, or incoordination limit functional ability with repeated use over a period of time. She stated there is no definitive way to predict functional ability during a flare-up or repeated use when it is not witnessed. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran's lay statements. In Sharp, the Court held the VA examination was inadequate because the examiner, although acknowledging the veteran was not suffering from a flare-up at the time of the examination, failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. There is no indication the examiner made any attempt to ascertain adequate information from relevant sources in order to provide the requested opinion. Regarding the claim for TDIU, the Board finds the issue of unemployabilty has been reasonably raised by the record. A remand will allow for the RO to provide proper notice regarding this issue, complete any needed development on the matter, and consider the merits of the claim in the first instance. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding the TDIU claim and request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Explain what is needed to establish entitlement to a TDIU due to service-connected residuals of left clavicle fracture, to include on an extraschedular basis. Ask the Veteran to submit any additional evidence in support of a TDIU claim, to specifically include information on his work history, salary, and educational history. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected residuals of left clavicle fracture. The claims file must be made available to and reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The physician should conduct range of motion testing of the bilateral shoulders (expressed in degrees) in active motion, passive motion, and (where appropriate) weight-bearing and nonweight-bearing settings. The physician should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins (expressed in degrees). In addition, the physician should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. If the examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran's lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must discuss the Veteran's contention that his left clavicle/shoulder pain is heightened by exposure to cold weather, repetitive weightbearing activities, and overhead lifting. See July 2016 VA examination. 3. Upon completion of the VA examination and opinion, the AOJ should review the examiner's report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2 (2017). 4. Upon completion of the above actions, readjudicate the claim. If any of the decision is adverse to the Veteran, issue a supplemental SOC and allow the Veteran and his representative the opportunity to respond. Thereafter, this case should be returned to the Board for further appellate review, if in order. 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 appeal must be afforded expeditious treatment. The law requires that all matters 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).