Citation Nr: 18145317
Decision Date: 10/26/18	Archive Date: 10/26/18

DOCKET NO. 13-25 496
DATE:	October 26, 2018
REMANDED
Entitlement to a rating in excess of 20 percent for residuals of left shoulder arthroplasty is remanded.
REASONS FOR REMAND
The Veteran served on active duty from August 1975 to August 1979 and from November 1979 to February 1996.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied a rating in excess of 20 percent for residuals of left shoulder arthroplasty.
1. Entitlement to a rating in excess of 20 percent for residuals of left shoulder arthroplasty is remanded.
The Veteran seeks a rating in excess of 20 percent for residuals of left shoulder arthroplasty.
The Veteran was most recently afforded a VA examination in July 2017 to determine the severity of his shoulder condition.  In September 2018 written arguments, the Veteran’s representative argued that the examination was inadequate as the examiner was a nurse practitioner, rather than an orthopedic physician.  
VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case.  Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)).  Part of that presumption “is that the person selected by... VA is qualified by training, education, or experience in the particular field.”  Id.  The presumption does not attach when there is evidence of irregularity in VA’s process of selecting the examiner and it may be rebutted by clear evidence of incompetence.  The Veteran, however, has not offered any such evidence, nor can the Board discern any from the record.  Moreover, the U.S. Court of Appeals for Veterans Claims (Court) has held that “[a] nurse practitioner, having completed medical education and training, fits squarely into the requirement of § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions.”  Cox v. Nicholson, 20 Vet. App. 563, 569 (2007).  Thus, the Board finds that there is no basis upon which to determine that the July 2017 examination was inadequate based on the fact that the examiner was a nurse practitioner.  
However, the Veteran, through his representative contends that his shoulder disability has worsened since he was last examined for VA compensation purposes.   As such, upon remand, the Veteran should be afforded a new VA examination to assess the current severity of his left shoulder disability.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be afforded a VA medical examination to evaluate the current severity of his service-connected left shoulder disability.  Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination.   
The examiner should identify the residuals of the Veteran’s left shoulder arthroplasty, to include stating whether those residuals include painful motion and/or weakness.  He or she should also comment on the severity of any painful motion or weakness.  
The examiner should also provide range of motion measurements, including at what point in the arc of motion pain limits function both regularly and during any flare-ups, even if a flare-up is not observed on that day.  In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors.
 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Ruddy, Associate Counsel