Citation Nr: 18148638
Decision Date: 11/07/18	Archive Date: 11/07/18

DOCKET NO. 16-46 089
DATE:	November 7, 2018
ISSUES
Entitlement to a rating in excess of 20 percent for left shoulder strain status-post arthroscopic repair of posterior labral tear.
REMANDED
Entitlement to a rating in excess of 20 percent for left shoulder strain status-post arthroscopic repair of posterior labral tear is remanded.
REASONS FOR REMAND
The Veteran served on active duty from July 1989 to June 2000. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 
The Board notes that a temporary evaluation of 100 percent was assigned effective December 18, 2014, until February 1, 2015, based on surgical or other treatment necessitating convalescence; this period is not considered on appeal as the maximum schedular rating is already assigned.
The Veteran was afforded a VA-contracted examination in November 2015.  However, the Board notes that the claim file was not reviewed by the examiner. The Veteran also stated that the examination did not address his diagnosed degenerative joint disease (DJD). Finally, the Board notes that the examiner did not report whether testing of the shoulder was performed on active and passive motion, and in both weightbearing and non-weightbearing.  38 C.F.R. § 4.59 (2017) provides that, with respect to painful motion and arthritis, the joints involved should be tested for pain on both active and passive motion, in weightbearing and non-weight bearing if possible, and if possible, with the range of the opposite undamaged joint.  Id.  
The United States Court has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016).  For these reasons, a new examination is necessary.  Barr, 21 Vet. App. 303, 312 (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
The matter is REMANDED for the following action:
1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claim.
2. Schedule the Veteran for a VA examination to determine the symptoms and severity of his service-connected left shoulder strain status-post arthroscopic repair of posterior labral tear.  Access to the electronic claims file should be made available to the examiner for review.  All tests and studies deemed necessary by the examiner should be performed, and all clinical findings should be reported in detail.
The examiner should address any diagnosed DJD and test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the joints in question.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  The supporting rationale for all opinions expressed must be provided.
3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal.  If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for future review.
 
MICHAEL A. PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R.M.K., Counsel