Citation Nr: 18153253 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-50 341 DATE: November 28, 2018 REMANDED Entitlement to a rating higher than 20 percent for right shoulder strain with degenerative arthritis is remanded. Entitlement to a rating higher than 10 percent for lumbar degenerative disc disease is remanded. REASONS FOR REMAND The Veteran had active service to include the period from June 1980 to September 1986. The issues on appeal arise from a June 2015 rating decision. However, in a rating decision in August 2016 the Regional Office (RO) granted a 20 percent rating for right shoulder strain with degenerative arthritis effective March 17, 2014, the date the Veteran’s claim was received. Thus, the issue is characterized as reflected above. In June 2017, the Veteran revoked the representation of his appeal by North Carolina Division of Veterans Affairs as his representative. In so doing, the Veteran stated that he is representing himself. Although the Veteran in his July 2015 notice of disagreement indicated that he was seeking a 30 percent rating for his service-connected lumbar spine and right shoulder disabilities, it is unclear if such ratings would satisfy his appeal as subsequent evidence shows that his service-connected right shoulder and lumbar spine disability have increased in severity. On VA examinations in November 2018, the Veteran reported that his right shoulder disability and lumbar spine disability have been worsening over the past four years. He noted that his right arm now gets numb and tingly. Further, in October 2018, his private doctor opined that the Veteran’s back pain has been worsening. Thus, based on the evidence of record, the Veteran has not clearly and unambiguously limited his appeal for higher ratings for his right shoulder and lumbar spine disabilities. It must therefore be presumed that he is seeking the maximum ratings possible. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based upon individual unemployability (TDIU) is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The issue of entitlement to a TDIU has been raised by the record. See, e.g. October 2018 statement. While the Board has jurisdiction to consider the issue of entitlement to a TDIU as part of the Veteran’s claim for an increased rating, recent evidence in the claims file shows that the RO is currently developing the claim of entitlement to TDIU. See, e.g., October 2018 VA letter sent to the Veteran’s former employer, with former employer’s response received in November 2018. Further, in October 2018 the Veteran also filed a claim to reopen the issue of entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, which the RO also is in the process of developing. See, e.g., November 2018 VA opinion. As such, the Board will not accept jurisdiction over the claims of entitlement to a TDIU and the claim to reopen service connection for hypertension at this time, but they will be the subject of subsequent Board decisions, if otherwise in order. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on November 5, 2018. However, the Veteran’s appeal for higher ratings for right shoulder strain with degenerative arthritis and lumbar degenerative disc disease has already been activated at the Board and is therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. Issues 1-2: Entitlement to a rating higher than 20 percent for right shoulder strain with degenerative arthritis and entitlement to a rating higher than 10 percent for lumbar degenerative disc disease are remanded. The Veteran was most recently afforded a VA examination for his right shoulder in November 2018. The examiner noted that the Veteran reported flare-ups in his right shoulder, pointing out that the Veteran stated that he could hardly move his arm and had to pull it up with his left arm. The examiner opined that it would be mere speculation to determine additional functional limitation during flare-ups as the Veteran was not being examined during a flare-up. However, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a conclusion that the severity of additional functional impairment due to flare-ups cannot be made without resorting to speculation is inadequate if the examiner failed to obtain adequate information regarding flares-ups (e.g., frequency, duration, characteristics, severity) or functional loss (by alternative means, including lay statements). The November 2018 VA examination did not comply with the requirements of Sharp. The November 2018 VA shoulder examination also is not in complete compliance with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examiner did not provide a range of motion finding that is painful on passive use. Further, both on the VA examinations in November 2018 for the right shoulder and lumbar spine, in the section for other pertinent physical findings, complications, conditions, signs or symptoms, there is a notation to refer to scanned documents, which can be accessed in CPRS (Computerized Patient Record System) by selecting “Tools” and then “Vista Imaging Display.” However, the Board does not have access to CPRS or Vista Imaging. Given that the Veteran’s most recent VA treatment records in the claims file are dated on October 25, 2018, it does not appear that the records referenced on the VA examinations are available in the file for review. On remand, the records should be associated with the file. Lastly, the Agency of Original Jurisdiction (AOJ) has not issued a Supplemental Statement of the Case nor has the Veteran waived initial AOJ review of the evidence received since his most recent VA examinations in November 2018. Thus, the AOJ should be provided with the opportunity to readjudicate the Veteran’s claims in light of the evidence received since the Veteran’s September 2016 Statement of the Case, to include VA examinations dated in November 2018. The matters are REMANDED for the following action: 1. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran’s service-connected right shoulder strain with degenerative arthritis and lumbar degenerative disc disease referenced in the November 2018 VA examinations that are housed in CPRS, to include Vista Imaging Display. 2. Then, schedule the Veteran for an examination to determine the current severity of his service-connected right shoulder strain with degenerative arthritis. The examiner should provide a full description of all relevant pathology pertaining to this disability. a.) The examiner must test the range of motion of the Veteran’s right shoulder that is painful on active use, passive use, in weight-bearing, and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. To the extent possible, the examiner must estimate any additional functional loss caused by the Veteran’s flare-ups. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups expressed in terms of additional range of motion lost. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the general medical knowledge (no one could respond given medical science and the known facts), or a deficiency in the record (more facts are required). b.) The examiner should identify any and all nerves affected by the service-connected right shoulder strain with degenerative arthritis and their degree of lost or impaired function. To that end, the examiner must describe such impairment as mild, moderate, severe, or complete. The examiner also should note whether or not any nerve involvement is wholly sensory. If there are overlapping symptoms among multiple nerves, the examiner should identify to the extent possible the impaired nerve that is most analogous to the Veteran’s symptoms. (CONTINUED ON NEXT PAGE) 3. Afterwards, the issues remanded herein should be readjudicated by the AOJ. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel