Citation Nr: 18154507 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-27 638 DATE: November 30, 2018 REMANDED 1. Entitlement to a rating in excess of 20 percent for glenohumeral joint dislocation (previously diagnosed as anterior labral tear) right shoulder is remanded. 2. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine (previously rated as degenerative changes at L4-L5) (claimed as low back pain) is remanded. REASONS FOR REMAND The Veteran served in the United States Army from February 2002 to March 2007. He received the Combat Infantryman Badge, among other decorations, for this service. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. Jurisdiction of the matter was subsequently transferred to the RO in Boston, Massachusetts. At the time the appeal was initiated, the Veteran had received a 10 percent rating for his right shoulder disability and a 10 percent rating for his spine disability. A May 2016 rating decision increased both the right shoulder and spine disability to 20 percent disabling, effective February 13, 2012. While the Veteran’s initial appeal included claims for service connection for hearing loss/tinnitus and post-traumatic stress disorder, service connection for these conditions was granted in the May 2016 rating decision. The Veteran did not disagree with the rating or effective date assigned and therefore only the right shoulder claim and spinal claim remain on appeal. 1. Increased Rating for Glenohumeral Joint Dislocation (previously diagnosed as anterior labral tear) Right Shoulder When examining a veteran for musculoskeletal issues, it is required that the examiner include joint testing for pain on both active and passive motion, in weight-bearing and on-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of additional functional loss during a flare-up could not be provided. If the examiner is unable to provide an opinion, the Board may rely on a conclusion only if the examiner has considered all procurable and assembled data and if the opinion resulted from a limitation of the medical community at large and not a limitation based on lack of expertise, insufficient testing, or unprocured testing by the examiner. Sharp v. Shulkin, 29 Vet. App. 26, 23 (2017). In May 2016, the Veteran underwent a VA examination to determine the severity of the service-connected right shoulder disability. The examiner tested the initial range of motion (ROM) of the Veteran’s right shoulder and concluded that the ROM was abnormal and contributed to a functional loss. The flexion, abduction, external rotation and internal rotation all exhibited pain for the Veteran, but there is no testing or indication of when this pain starts. The examiner indicates that the Veteran is able to perform repetitive-use testing on his right shoulder, and that there is no additional loss of function or ROM after three repetitions. The Veteran indicated that pain and weakness significantly limit functional ability with repeated use of his right shoulder over time, but the examiner is unable to describe the terms in ROM. The Veteran again states that pain and weakness significantly limit functional ability with flare-ups, but the examiner is unable to describe the terms in ROM. Therefore, under Correia, the VA examination is not adequate for rating purposes as it does not discuss passive and active ranges of motion or specify the limitations from flare-ups, therefore the claim for a rating in excess of 20 percent for glenohumeral joint dislocation of the right shoulder must be remanded for further examination. 2. Increased Rating for Degenerative Arthritis of the Spine (previously rated as degenerative changes at L4-L5) (claimed as low back pain) In May 2016, the Veteran underwent a VA examination to determine the severity of his service-connected spine disability. The Veteran did not report flare-ups of the thoracolumbar spine, but did indicate that he is unable to lift greater than 25 pounds repetitively, contributing to the functional loss or functional impairment of his spine. The examiner tested the initial range of motion (ROM) of the Veteran’s spine and concluded that the ROM was abnormal and contributed to a functional loss. The forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation all exhibited pain for the Veteran, but there is no testing or indication of when this pain starts. The examiner indicates that the Veteran is able to perform repetitive-use testing on his spine, and that there is no additional loss of function or ROM after three repetitions. The Veteran indicated that pain significantly limits functional ability with repeated use of his spine over time, but the examiner is unable to describe the terms in ROM. The VA examination is not adequate for rating purposes as it does not discuss passive and active ranges of motion or specify the limitations from flare-ups, therefore the claim for a rating in excess of 20 percent for glenohumeral joint dislocation of the right shoulder must be remanded for further examination. The matters are REMANDED for the following action: 1. Associate any outstanding VA records with the electronic claims file. 2. Schedule the Veteran for an examination of the current severity of his service-connected glenohumeral joint dislocation of the right shoulder. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right shoulder alone and discuss the effect of the Veteran’s right shoulder on any occupational functioning and activities of daily living. 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 state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination of the current severity of his service-connected degenerative arthritis of the spine. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the degenerative arthritis of the spine alone and discuss the effect of the Veteran’s degenerative arthritis of the spine on any occupational functioning and activities of daily living. 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 state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Iannone, Law Clerk