Citation Nr: 1807766 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-02 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial compensable rating for right lower extremity shin splints. 2. Entitlement to an initial compensable rating for left lower extremity shin splints. 3. Entitlement to an initial rating in excess of 20 percent for right shoulder degenerative joint disease with deformed clavicle. ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2004 to December 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case was most recently before the Board in September 2017. At that time, the claim was remanded to schedule the Veteran for a requested Board hearing. Upon remand, the RO scheduled the Veteran for a videoconference Board hearing on November 27, 2017. A review of the Veterans Appeals Control and Locator System (VACOLS), which is an automated database for tracking appeals, reflects that the Veteran failed to appear for the hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, additional development is required prior to appellate adjudication of the issues. The Veteran was most recently afforded a VA examination to assess the severity of his right shoulder and shin splint disabilities in July 2016. Subsequent to this examination, the Court issued Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held "that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." Id, at 8. Specifically, range of motion studies must be performed that test active and passive range of motion as well as in weight-bearing and nonweight-bearing. Additionally, the July 2016 examiner's assessment that determining the extent of motion loss during flares required resort to speculation does not comply with a recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Given these facts, the claim must be remanded for a new examination. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder updated private and VA treatment records. 2 Schedule the Veteran for VA examinations to determine the severity of his service-connected right shoulder disability and bilateral shin splint disabilities. The Veteran's electronic claims file must be made available for review. In order to comply with Sharp, the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia, the VA examination must include range of motion testing in the following areas: * Active motion; * Passive motion; * Weight-bearing; and * Nonweight-bearing. 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 VA examiner should provide a complete rationale for any opinions provided. 3. After completing the aforementioned, and conducting any additional development deemed necessary, readjudicate the issue on appeal in light of all additional evidence received. If any of the benefits sought on appeal are not granted in full, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI 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).