Citation Nr: 1801966 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-06 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 20 percent for the residuals of a left shoulder injury, including degenerative joint disease, status post clavicle resection. REPRESENTATION Appellant represented by: Christopher R. Debski, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to December 1991. This case was previously before the Board of Veterans' Appeals (Board) in July 2016, when it was remanded for further development. Following the requested development, the VA Appeals Management Center in Washington, D.C. increased the Veteran's rating from 10 percent to 20 percent, effective February 17, 2010. Because that rating did not constitute a full grant of the benefit sought on appeal, the case was returned to the Board for further appellate action. In April 2016, the Veteran testified before the undersigned at a video conference hearing. In May 2017, the Board denied entitlement to an increased rating for residuals of a left shoulder injury, including degenerative joint disease, status post distal clavicle resection. In September 2017, the May 2017 decision was vacated by the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran reports that his service-connected left shoulder disability is manifested, in part, by complaints of pain with flare-ups productive of additional functional loss. During the course of the appeal, the Veteran was treated for left shoulder disability by VA through September 2016. He was also examined by VA on three occasions, July 2010, March 2015, and November 2016. While the examiners noted the Veteran's report of left shoulder flare-ups, they did not elicit relevant information as to the appellant's flares or ask him to describe the additional functional loss during flares. In particular, they did not estimate the Veteran's functional loss due to flares based on all the evidence of record. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017) (When conducting evaluations for musculoskeletal disabilities, examiners are instructed to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, "per [the] veteran," to what extent, if any, they affect functional impairment.) In light of the foregoing discussion, additional development of the record is required. Accordingly, and the case is returned to the AOJ for the following action: 1. Ask the Veteran for the name and address of all health care providers (VA and non-VA) who have treated the Veteran for his left shoulder disability since September 2016. Then request those records directly from the health care providers identified by the Veteran. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the requested records are held by an entity affiliated with the Federal government, efforts to obtain those records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. If the requested records are held by an entity not affiliated with the Federal government, and those records are unavailable, notify the Veteran and his representative in accordance with the provisions of 38 U.S.C. § 5103A(b) (2012); 38 C.F.R. § 3.159(e) (2017). 2. Thereafter, schedule the Veteran for an orthopedic examination to determine the nature and severity of his service-connected left shoulder disability. The Veteran's VBMS and Virtual VA files, as well as a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must identify and explain the elements supporting the left shoulder diagnosis. The examiner must report the range of the Veteran's left shoulder motion, to include testing for pain on both active and passive motion. The examiner must address whether there is weakened movement, excess fatigability, and/or incoordination associated with the Veteran's left shoulder disability. The examiner must address whether there is a lack of normal endurance and functional loss due to left shoulder pain and pain on use, including that experienced during flare-ups. The examiner must address the frequency, severity, and duration of any reported left shoulder flare-ups and their functional impact on his ordinary activity including employment. With respect to flare-ups the examiner MUST ESTIMATE any additional functional loss due to flares, even if no flare is demonstrated on examination, based on all the evidence of record. If the examiner is unable to ascertain and quantify the extent of any additional left shoulder loss of function during flare-ups, he or she must explain why that it not possible. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested 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 A copy of the notice informing the Veteran of the date, time, and location of the examination must be associated with the claims folder. If that notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. The Veteran is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 3. Then, after completing any other indicated development readjudicate the issue of entitlement to an increased rating for the Veteran's left shoulder disability. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the AOJ. 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. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN 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).