Citation Nr: 18157510 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 13-21 732A DATE: December 13, 2018 REMANDED Entitlement to an initial compensable rating prior to June 3, 2014, and in excess of 10 percent thereafter for left shoulder impingement with bicipital tendinitis is remanded. REASONS FOR REMAND The Veteran served on active duty training from January 2008 to June 2008, and on active duty from May 2011 to May 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In connection with his request, the Veteran was scheduled for a Board hearing before a Veterans Law Judge in June 2015; however, he failed to report for it. Consequently, his request for a Board hearing is considered withdrawn. 38 C.F.R. §§ 20.702(d), 20;704(d). In June 2017, the Board denied the claim on appeal. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted the Veteran’s and the Secretary of VA’s (the parties) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s June 2017 decision for action consistent with the JMPR. The matter now returns to the Board for further consideration. The Board notes that additional evidence, to include updated VA treatment records, was associated with the record since the issuance of the July 2014 supplemental statement of the case. However, as his claim is being remanded, the Agency of Original Jurisdiction will have an opportunity to review the newly received evidence such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. Entitlement to an initial compensable rating prior to June 3, 2014, and in excess of 10 percent thereafter for left shoulder impingement with bicipital tendinitis. In denying the Veteran’s claim for a higher initial rating for the Veteran’s left shoulder disability in the June 2017 decision, the Board relied upon VA examinations conducted in January 2013 and June 2014. However, in the JMPR, the parties found such VA examinations to be inadequate as they did not comply with the Court’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Consequently, a remand is necessary in order to afford the Veteran a new VA examination that addresses the nature and severity of his left shoulder disability in accordance with the Court’s guidance. The matter is REMANDED for the following action: The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected left shoulder disability. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s left shoulder disability. (B) The examiner should record the range of motion of the left shoulder observed on clinical evaluation in terms of degrees for flexion and abduction. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s left shoulder disability conducted in January 2013 and June 2014. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his left shoulder, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner should also indicate whether the Veteran’s left shoulder disability results in ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula and, if so, the severity of such impairment. (G) The examiner should also comment upon the functional impairment resulting from the Veteran’s left shoulder disability. A rationale should be provided for each opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel