Citation Nr: 1806667 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 03-20 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for status postoperative right shoulder acromioclavicular separation with ankylosis, currently rated as 20 percent disabling prior to July 17, 2009; 30 percent disabling from December 1, 2009 to September 29, 2013; and 50 percent disabling from September 30, 2013 to the present. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Marine Corps from March 1984 to March 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which continued the previous assignment of a 20 percent disability rating for the Veteran's right shoulder disability. The Board further denied the Veteran's claim for an increased rating in an April 2004 rating decision. However, in July 2006, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand filed by representatives for both parties, and ordered that additional development be undertaken consistent with the terms of the Joint Motion. Subsequently, a February 2010 rating decision awarded the Veteran a 100 percent disability rating, effective July 17, 2009 to November 30, 2009, for a period of temporary convalescence following right shoulder surgery. Further, a February 2012 rating decision awarded the Veteran a 30 percent disability rating, effective December 1, 2009. Finally, a May 2014 rating decision awarded the Veteran a 50 percent disability rating, effective September 30, 2013. As all ratings other than the assigned period of temporary convalescence are less than the maximum benefit available, and the Veteran has not indicated satisfaction with the ratings assigned, the appeal remains pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's right shoulder claim has been the subject of Board remands in April 2007, January 2009, August 2010, September 2012, and August 2015. In a March 2017 decision, the Board denied the right shoulder claim currently on appeal. The Veteran appealed the Board's decision, and in October 2017, the Court granted a Joint Motion for Partial Remand that remanded the right shoulder claim to the Board. For reasons discussed below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. I. Increased Rating for Right Shoulder Disability In the October 2017 Joint Motion for Partial Remand, the parties agreed that remand was necessary because the Board did not set forth an adequate statement of reasons or bases regarding functional impairment due to flare-ups and repetitive use over time. The Board notes that during previous VA examinations, the Veteran reported experiencing flare-ups, during which he experiences increased pain with more limited range of motion. However, none of the VA examiners specifically addressed functional loss during flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court recently held that VA examination reports must address functional loss during flare-ups regardless of whether the veteran was undergoing a flare-up at the time of examination. Therefore, on remand, the Veteran must be afforded a VA examination which addresses functional loss during flare-ups, as well as following repetitive use over time. The parties to the Joint Motion also agreed that remand was required for the Board to set forth an adequate statement of reasons or bases regarding whether the Veteran's symptoms of muscle atrophy, reduced muscle strength, dislocation, giving way, and instability warrant separate disability ratings, or whether those symptoms warrant referral for extraschedular consideration. Consequently, the VA examination report must address the Veteran's symptoms of muscle atrophy, reduced muscle strength, dislocation, giving way, and instability. Specifically, the examiner should indicate whether such symptomatology is the result of a separate and distinct disability, or whether it is duplicative of or overlapping with the symptomatology of the already service-connected status postoperative right shoulder acromioclavicular separation with ankylosis. II. TDIU The Board finds that since the Veteran's claim for an increased rating for his right shoulder disability may impact his combined total disability rating, the issue is inextricably intertwined with his claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). As such, a decision on the claim for a TDIU would be premature, and remand is also required pending resolution of the intertwined claims. Accordingly, the case is REMANDED for the following actions: 1. Schedule a VA examination to determine the current severity of the Veteran's service-connected right shoulder disability. The Veteran's claims file must be made available to and reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disability should be identified. The examiner should address range of motion in degrees and any functional loss due to pain or painful motion as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. The examiner must address at what point pain sets in. Any additional functional loss should be expressed in terms of the degree of additional limitation of motion. The examiner must specifically express an opinion concerning whether there would be additional limitations on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such development could not be accomplished. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The examiner should also ensure that, consistent with 38 C.F.R. § 4.59, the VA examination report contains range of motion testing, including active, passive, weight-bearing, and non-weight-bearing, including the results following repetitive motion testing and whether there is any functional loss (please describe as stated above). If any of the range of motion testing described above cannot be performed or is not medically appropriate, the examiner should explain why. The examiner is also asked to specifically address the Veteran's symptoms of muscle atrophy, reduced muscle strength, dislocation, giving way, and instability, and state whether such symptomatology is the result of a separate and distinct disability, or whether it is duplicative of or overlapping with the symptomatology of the already service-connected right shoulder disability. 2. Then, readjudicate the appeals, including the Veteran's claim for TDIU. If the claims remain denied, issue a supplemental statement of the case and provide the Veteran and his representative adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).