Citation Nr: 18160929
Decision Date: 12/28/18	Archive Date: 12/28/18

DOCKET NO. 11-08 564
DATE:	December 28, 2018

REMANDED

Entitlement to a rating higher than 20 percent for left (minor) shoulder impingement syndrome, status post rotator cuff repair is remanded.

REASONS FOR REMAND

The Veteran had active service from December 1988 to June 1995.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The matter was subsequently transferred to the RO in Montgomery, Alabama.

The Board remanded the matter in September 2015 and December 2016.

In June 2017, the Board denied a rating higher than 20 percent for the service-connected left shoulder disability.

In May 2018, the Court of Appeals for Veterans’ Claims (CAVC) entered an Amended Joint Motion for Partial Remand (JMPR) vacating in part the June 2017 Board decision, only to the extent that it denied a disability rating in excess of 20 percent for the service-connected left shoulder disability.

1. Entitlement to a rating higher than 20 percent for left (minor) shoulder impingement syndrome, status post rotator cuff repair is remanded.

The May 2018 JMPR indicated that upon remand, a new VA examiner’s opinion should be entered to estimate the additional functional limitation and range-of-motion loss due to pain and functional loss during flare-ups, repetitive use, and repetitive use over time, or adequately explain why such an opinion is not possible without resorting to speculation.  Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (returning a medical examination that failed to address any range-of-motion loss specifically due to pain and any functional loss during flare ups). 

If an opinion is not possible without resorting to speculation, the examiner must adequately explain why.  The examiner must consider all procurable and assembled data, and show whether any inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large versus a limitation based on a lack of expertise, insufficient information, or unprocured testing of the individual.

The matter is REMANDED for the following action:

1. Schedule the Veteran for an examination of the current severity of his service-connected left shoulder disability.  The examination is requested to include the following:

(a.) 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.  

(b.) The examiner is specifically requested to estimate the additional functional limitation and range-of-motion loss due to pain and functional loss during flare-ups, repetitive use and repetitive use over time.

(c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the left shoulder alone and discuss the effect of the Veteran’s left shoulder on any occupational functioning and activities of daily living.  

(d.) If an opinion is not possible without resorting to speculation, the examiner must adequately explain why.  The examiner must consider all procurable and assembled data, and show whether any inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large, a limitation based on a lack of expertise, insufficient information, or unprocured testing of the individual.

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2. After the above is complete, readjudicate the Veteran’s claim.  If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond.

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	K. M. Georgiev