Citation Nr: 18155637 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 14-27 084 DATE: December 4, 2018 REMANDED Entitlement to an initial compensable evaluation for left shoulder separation for the period prior to October 15, 2014, and for an evaluation in excess of 20 percent disabling for the period thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2006 to November 2010. Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f). The Board notes that the most recent VA Form 21-22 on file identifies the Veteran’s representative as the Texas Veterans Commission (TVC). An older VA Form 21-22 identifies the Disabled American Veterans (DAV) as the representative; however, DAV has continued to submit argument on behalf of the Veteran. In May 2018, the Board sent the Veteran a representative clarification letter, but he failed to respond. Accordingly, as the most recent VA Form 21-22 is from TVC, the Board finds TVC to be the representative. See 38 C.F.R. § 14.631(f). The record shows that the Veteran was scheduled for a hearing in November 2016, but was unable to appear. See Report of General Information, October 2016. The Veteran was sent correspondence in October 2018, asking if he would like to schedule another optional hearing before a Veterans Law Judge. The Veteran did not respond. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702 (d). Entitlement to an initial compensable evaluation for left shoulder separation for the period prior to October 15, 2014, and for an evaluation in excess of 20 percent disabling for the period thereafter, is remanded. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. First, the Board finds that a new examination is needed in order to comply with the Court’s precedential decision of Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court found the final sentence of 38 C.F.R. § 4.59, created a requirement that whenever possible in the cases of joint disabilities, “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” 38 C.F.R. § 4.59. The most recent VA examination from October 2014 does not meet these specifications. For example, the examination report does not provide range of motion findings that were obtained on active versus passive motion. In addition, the Board notes the passage of more than four years since the Veteran’s last examination. Given the deficiencies in the prior examination, as well as the length of time that has passed, the Board will afford the Veteran the opportunity for a new examination. Accordingly, the matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his left shoulder disability. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. All necessary diagnostic testing should be performed. 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 examiner is asked specifically to provide range of motion testing (ROM) for the left shoulder for active motion, passive motion, weight-bearing, and nonweight-bearing. Full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report. In addition, for both the left shoulder and opposite joint, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, for both the left shoulder and opposite joint the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. Finally, the examiner is asked to address the Veteran’s July 2014 MRI. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel