Citation Nr: 1803031 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 09-14 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for left shoulder dislocation. 2. Entitlement to a disability rating in excess of 30 percent for right shoulder dislocation. 3. Entitlement to a disability rating in excess of 20 percent for left shoulder impingement. 4. Entitlement to a disability rating in excess of 20 percent for right shoulder impingement prior to October 4, 2016, and in excess of 30% thereafter. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1999 to December 2000 in the United States Navy. These matters come to the Board of Veterans' Appeals (Board) from September 2008, August 2015 and January 2017 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, TX. The issues on appeal arose as a result of the Veteran's April 2008 claim for an increased rating for his bilateral shoulder dislocation disabilities. In response to this claim, the RO issued a rating decision in September 2008, which decreased the Veteran's awards for chronic dislocation of the right and left shoulders to 10 percent each, effective December 1, 2008. The Veteran appealed this decision, and the Board resolved those issues in November 2010 and December 2015 decisions. In an August 2015 rating decision, the RO awarded separate 20 percent disability ratings for left and right shoulder impingement syndrome, effective August 24, 2015. Subsequently, in the December 2015 decision, the Board granted entitlement to the following: a 30 percent rating for chronic right shoulder dislocation, effective December 1, 2008; a 20 percent rating for right shoulder impingement syndrome, effective December 1, 2008; and a 20 percent rating for left shoulder impingement syndrome, effective December 1, 2008. In its December 2015 decision, the Board remanded the remaining issues of entitlement to increased ratings for bilateral shoulder dislocation and bilateral shoulder impingement for initial review. In an April 2016 supplemental statement of the case, the RO denied the increased rating claims for the Veteran's shoulder disabilities, and returned the case to the Board in September 2016. At that time, the Board found there had been compliance with prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board also determined that a claim for entitlement to a TDIU had been raised, and remanded all matters for further development including a medical examination. In May 2017, the Board found the examination the Veteran underwent did not comply with the United States Court of Appeals for Veterans Claims (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016) and 38 C.F.R. § 4.59, and as a result the Board remanded for an additional examination. The case is properly before the Board. 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 2017 remand directives, the Veteran underwent another VA examination of his shoulders in June 2017. Upon review of the examiner's report, the Board finds an additional remand is required in order to ensure compliance with its May 2017 remand and a recent decision of the Court. As part of the May 2017 remand, the Board directed that "an opinion must be given as to whether any pain associated with the Veteran's left and right shoulder impingement and dislocation could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups." See May 2017 Board remand (emphasis added). During the June 2017 examination, the Veteran reported that he has flare-ups anywhere from every other day to once per week, which will cause him to limit use of the shoulder and try to relax. He also reported the flare-ups can last from one to seven days. The examiner noted that the Veteran wasn't experiencing a flare-up at the time of the examination. Due to this, the examiner indicated an inability to comment on, without resorting to mere speculation, whether pain, weakness, fatigability or incoordination significantly limit the Veteran's functional ability with flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court discussed a similar shoulder disability opinion and rationale and found such to be inadequate. In this regard, the Court stated that "[b]ecause the VA examiner did not . . . estimate the veteran's functional loss due to flares based on all the evidence of record-including the veteran's lay information-or explain why she could not do so, the . . . examination was inadequate." Sharp, 29 Vet. App at 36. Additionally, the Court in Sharp reiterated that the Board can accept an examiner's statement that an opinion cannot be provided without resort to speculation, but "it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner." Sharp, 29 Vet. App at (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). The examiner did not provide sufficient information for the Board to draw such a conclusion. In light of the above, remand is required in order to ensure the Veteran is provided an examination in compliance with VA law. Furthermore, determination of the Veteran's shoulder claims will directly impact the Veteran's TDIU claim, such that the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Holland v. Brown, 6 Vet. App. 443, 445-46 (1994). As such, remand of the shoulder claims necessitates remand of the TDIU claim, so that the full scope of the Veteran's service-connected disabilities may be considered in analyzing entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA records of evaluation and/or treatment since January 2017. 2. In compliance with the Board's May 2017 remand, schedule the Veteran for a VA examination to assess the current severity of his service-connected left and right shoulder impingement and dislocation. The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner should also report the following: a. Whether there is any ankylosis of either shoulder; b. Whether motion for either arm is limited to midway between the side and shoulder, or to 25 degrees from the side; c. Whether there is nonunion or malunion or fibrous union of the humerus; and d. Whether there is recurrent dislocation of the humerus at the scapulohumeral joint. All ranges of motion involving left and right shoulder impingement and dislocation should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's left and right shoulder impingement and dislocation could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. If the Veteran is not experiencing a flare-up at the time of the examination, the examiner should estimate the Veteran's functional loss due to flare-ups based on all the evidence of record, including the Veteran's lay statements, or explain why she or he could not do so. Finally, the examiner should comment on how, if at all, the Vetearn's service-connected bilateral shoulder disabilities impair function necessary to secure or follow all forms of substantially gainful employment. If the Veteran is felt capable of work, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. A clear rationale for all opinions should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After undertaking any additional development deemed appropriate, adjudicate the claims in light of any additional evidence added to the record. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. 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. §§ 5109B, 7112 (2012). _________________________________________________ J. W. FRANCIS 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).