Citation Nr: 18157908 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 12-32 130 DATE: December 13, 2018 REMANDED Entitlement to an evaluation in excess of 10 percent for left shoulder subacromial bursitis with left medial scapular and upper trapezius myofascial ligamentous strain is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1987 to May 1991, and from February 1995 to April 1997, to include service in the Southwest Asia theater of operations during the Persian Gulf War. Most recently, in September 2017, the Board remanded the issues of entitlement to service connection for multiple joint pain, to include as due to an undiagnosed illness, and entitlement to an evaluation in excess of 20 percent for cervical strain with bulging disc (excluding the periods for which temporary total ratings under 38 C.F.R. § 4.30 was in effect). In September 2017, the Board also granted a 20 percent evaluation for duodenal ulcer, denied a compensable evaluation for vasomotor rhinitis, and denied entitlement to an evaluation in excess of 10 percent for left shoulder subacromial bursitis with left medial scapular and upper trapezius myofascial ligamentous strain. In August 2018, the United States Court of Appeals for Veterans Claims (Court), granted a August 2018 Joint Motion for Partial Remand (JMPR) of the parties (VA Secretary and the Veteran), and vacated the Board’s September 2017 decision to the extent that it denied entitlement to an evaluation in excess of 10 percent for left shoulder subacromial bursitis with left medial scapular and upper trapezius myofascial ligamentous strain, and remanded the claim pursuant to 38 U.S.C. § 7252 (a) for re-adjudication consistent with the Motion. However, the August 2018 JMPR dismissed the claims for increased ratings for the Veteran’s duodenal ulcer and vasomotor rhinitis. Further, the 20 percent evaluation for the Veteran’s duodenal ulcer granted by the Board in September 2017 was effectuated in a subsequent September 2017 rating decision. Although the Veteran, in part, expressed disagreement in a January 2018 notice of disagreement, such is not appealable through a process initiated via the Regional Office’s jurisdiction. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); Donovan v. Gober, 10 Vet. App. 404, 409 (1997). Accordingly, the sole issue currently before the Board is entitlement to an evaluation in excess of 10 percent for left shoulder subacromial bursitis with left medial scapular and upper trapezius myofascial ligamentous strain. Further, as discussed in the September 2017 Board decision, a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU) was not raised as part and parcel of the Veteran’s claim for an increased rating for service-connected left shoulder disability, as the Veteran was employed, nor has a claim subsequently been raised by the Veteran or the record. Therefore, the issue of entitlement to a TDIU is not raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an evaluation in excess of 10 percent for left shoulder subacromial bursitis with left medial scapular and upper trapezius myofascial ligamentous strain is remanded. As discussed above, the Court, in August 2018, granted a JMPR of the parties as to the issue of entitlement to an evaluation in excess of 10 percent for left shoulder subacromial bursitis with left medial scapular and upper trapezius myofascial ligamentous strain. Specifically, the August 2018 JMPR specifically found the August 2015 examiner’s inability to determine, without resorting to speculation, whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time or during flare-ups was inadequate. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Further, the August 2018 JMPR found the August 2015 examiner did not provide an adequate opinion as the Veteran’s range of motion testing for both active and passive motion, in both weight and nonweight-bearing status. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Thus, consistent with the August 2018 JMPR, a remand for another examination to address these deficiencies is warranted. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. All indicated testing must be accomplished, to include left shoulder range of motion testing for both active and passive motion, in both weight and nonweight-bearing status. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify all symptoms and functional impairment due to Veteran’s left shoulder subacromial bursitis with left medial scapular and upper trapezius myofascial ligamentous strain alone and discuss the effect of his service-connected left shoulder disability 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). 2. Thereafter, readjudicate the issue on appeal. If the benefit sought is not granted, 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 further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel