Citation Nr: 1803439 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-36 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES Entitlement to an initial rating in excess of 20 percent for a left shoulder disability prior to May 5, 2014, in excess of 40 percent from May 14, 2014 to March 12, 2017, and in excess of 20 percent from March 13, 2017. Entitlement to an initial compensable rating for residual left shoulder scars. Entitlement to an initial rating in excess of 20 percent for a right shoulder disability Entitlement to an initial compensable rating for residual right shoulder scars. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Harner, Associate Counsel INTRODUCTION The Veteran served on active duty as a U.S. Naval Academy midshipman from July 1980 to May 1984 and as a U.S. Marine Corps officer from June 1984 to June 2004. This issue came before the Board of Veterans' Appeals (Board) from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that granted service connection for right and left shoulder disabilities with bilateral surgical scars and assigned 10 percent ratings each, effective July 30, 2010. In May 2014, the Veteran testified at a Board hearing before a Veterans Law Judge who is now retired. A transcript of the hearing is of record. In correspondence in October 2017, the Board offered the Veteran the opportunity for another Board hearing. A timely response was not received. The Board remanded this case in December 2015 to provide the Veteran with a VA examination, which took place in March 2017. After the VA exam, a second rating decision and supplemental statement of the case (SSOC) were provided in May 2017. In May 2017, the RO granted a 20 percent initial rating for the left shoulder disorder, a 20 percent initial rating for the right shoulder disorder prior to May 5, 2014, a 40 percent rating from May 14, 2014 to March 12, 2017, and 20 percent from March 13, 2017. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In July 2014 the Veteran had shoulder surgery prompting the Board to remand this case in December 2015 for an additional VA examination. The Veteran received an examination in March 2017. The examination properly followed the instructions given in the remand including comments regarding the conduct of range of motion test requirements of 38 C.F.R. § 4.59 (2017) and an assessment of the associated scars, except that the examiner did not inquire about, or examine the Veteran during, flare-ups. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board must remand this case for an examination that does adequately evaluate the Veteran's service-connected bi-lateral shoulder disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Recently, the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must "[E]licit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then 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 [he or] she c[an] not do so." Sharp, 29 Vet. App. at 35. Thus, in light of the Court's determination in Sharp, the Board finds that this matter must be remanded for a new VA examination and opinion addressing the issue of limitation of motion during flare-ups. Accordingly, the case is REMANDED for the following action: 1. The examiner should be given access to all available information in the Veteran's case file, and the Veteran should provide the VA with any appropriate releases for information pertaining to the period since his last examination, after which the VA should procure any records of outstanding treatment recently received by the Veteran. 2. Once the VA has obtained additional records to the extent possible, including lay evidence from the Veteran, the Veteran should be afforded a new examination to evaluate the current nature of his bilateral shoulder disability that focuses specifically on his range of motion during flare-ups. Pursuant to 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range-of motion testing for pain, in degrees, on both active and passive motion and in weight-bearing and non weight bearing . If any, the extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. The examiner should explain why the test the tests should not be performed if medically inappropriate. The examiner must comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should also offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 3. Then readjudicate the appeal. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained since these issues were last adjudicated below, and provides an opportunity to respond. 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).