Citation Nr: 18142764 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 12-22 865 DATE: October 17, 2018 REMANDED Entitlement to an initial increased rating exceeding 20 percent for service connected right shoulder adhesive capsulitis is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1981 to May 1982. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In a June 2017 decision, the Board remanded the claim for a new medical examination and opinion that addresses the Veteran’s current level of severity, including results from the Veteran’s range of motion (both active and passive motion) and in weight-bearing and non-weight-bearing, in compliance with Correia v. Mcdonald, 28 Vet. App. 158 (2016). The Veteran was afforded a new examination in June 2017; however, in December 2017, the VA deemed the examination insufficient as the required test regarding Correia was not performed. See Request for Physical Examination, dated December 2017. Subsequently, in an email dated January 2018, the VA rejected this determination as already completed, and directed the Board to the “remarks section” of the June 2017 VA examination, which specifically addresses Correia by stating “there is no evidence of pain on passive range of motion testing of the right shoulder. There is no evidence of pain on non-weight bearing testing of the right shoulder. There is no evidence of pain on passive range of motion testing of the left shoulder. There is no evidence of pain on non-weight bearing testing of the left shoulder.” See C&P Exam, dated January 2018. The Board finds there has not been substantial compliance with its June 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to an initial increased rating exceeding 20 percent for service connected right shoulder adhesive capsulitis is remanded. After review of the June 2017 VA examination, and the “remarks section,” the Board finds these findings do not meet the specifications of Correia (mandating that examinations of the musculoskeletal system include testing as described in 38 C.F.R. § 4.59, or an explanation as to why such testing is not warranted or not possible). 28 Vet. App. 158 (2016). Specifically, the examiner did not address whether the range-of-motion testing was conducted on active or passive motion and weight-bearing or non-weight bearing. Given this, the Board is not satisfied that the examination findings are adequate for a contemporaneous rating, nor is the Board satisfied that the mere statements found in the “remarks section” adequately addresses Correia and the Board’s remand directives. Therefore, the Board finds there was not substantial compliance with the remand order. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Consequently, the claim must be remanded for a new VA examination. Additionally, the Board finds the June 2017 VA examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). According to Sharp, when a Veteran complains of flare-ups, the examiner must “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.” 29 Vet. App. At 10-11. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion loss. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Furthermore, in situations where an examination is not conducted during a flare-up, a VA examiner should estimate functional loss based on the Veteran’s descriptions of his/her additional loss of function during flare-ups, gleaned from his/her medical records, or discerned from other sources available to the examiner. Id. At 35-36. In the June 2017 VA examination, the Veteran reported flare-ups of his right shoulder, however, the examination was not conducted during a flare-up, and the examination fails to show the examiner ascertained the required information as to the severity, frequency, duration, characteristics, or functional loss regarding his flare-ups by alternative means. Therefore, the Board finds that an additional examination is necessary to gather such information to adequately understand the Veteran’s additional and/or increased symptoms and limitations, pursuant to Correia and Sharp, and under 38 C.F.R. § 3.159 (c)(4). The matter is REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his right shoulder disability, and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his right shoulder disability. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination, and the examiner should note review of the record in the examination report. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. 3. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and non-weight-bearing, and if possible, with range of motion measurements of the opposite undamaged joint. The examiner should report (in degrees) the point at which pain is objectively recorded. The examiner must also attempt to elicit information, based on all the evidence of record, regarding the severity, frequency, and duration of any flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right shoulder disability, and report or estimate functional loss in terms of the degree of additional loss of range of motion. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his/her conclusion that a non-speculative   opinion cannot be offered. The examiner must provide a complete rationale for any opinion given. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel