Citation Nr: 1807960 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 13-28 751A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a disability rating in excess of 20 percent for residuals of right shoulder impairment (right shoulder condition). Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1961 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the United States Department of Veterans Affairs (VA), Regional Office (RO) in Baltimore, Maryland. This issue was previously before the Board in August 2017 and was remanded for further development. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the Veteran's prior hearing before the undersigned he indicated that he would likely be unable to pass his next Department of Transportation physical due to his right shoulder condition and would therefore not be able to keep his job. The Veteran was still working at the time of the hearing, however, in an Informal Hearing Presentation filed by the Veteran's representative in January 2018 it was stated that "we are having difficulty conceptualizing any occupation, sedentary or otherwise, where at some point the Veteran would not be required to lift or manipulate the right arm in some fashion." As consideration of TDIU is part and parcel with the issues for higher evaluations, the Board finds that the issue of TDIU is on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In August 2017, the Board remanded the Veteran's claim to obtain a new VA examination. Following the Board's remand, the Veteran underwent a VA shoulder examination in October 2017. The examination report contains initial range of motion testing, as well as active and passive range-of-motion testing. However, the examination specifically notes that the Veteran experienced pain on weight-bearing but did not include range-of-motion findings for the Veteran's right shoulder in weight-bearing and nonweight-bearing positions. Therefore the examination was inadequate under Correia v. McDonald, 28 Vet. App. 158 (2016). Further, while the VA examiner noted the Veteran's reports of experiencing flare-ups that limited his ability to lift his right arm, the examiner provided no information on the additional functional limitations experienced by the Veteran due to such flare-ups and did not adequately explain why such information could not be provided. Before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner also failed to identify whether the Veteran is experiencing any neurological manifestations related to his shoulder. He testified at the hearing that he began experiencing episodes of radiating pain and numbness in his right arm. Consequently, the October 2017 VA examination is inadequate for rating purposes as it does not provide the required information and fails to explain why the Veteran's reports of his flare-ups cannot be used to estimate the range of motion or address possible neurological manifestations. Thus, a new examination is necessary. The Veteran does not meet the scheduler criteria for TDIU consideration. 38 C.F.R. § 4.16(a). The evidence of record suggests that the Veteran may be unable to obtain substantially gainfully employment, and consideration of an extraschedular TDIU rating must be completed on remand. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); 38 C.F.R. § 4.16(b). On remand, the Veteran should be asked to complete a VA Form 21-8940, Application for TDIU. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with VA Form 21-8940 and request that he supply the requisite information. Then take any further development of the TDIU claim deemed necessary. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to reassess the severity of the service-connected right shoulder disability, to include any associated neurological impairment and peripheral nerve disorder(s). The claims folder and all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner must describe all impairment of the right shoulder; and make determinations regarding range of motion, including any additional functional impairment. The examinations must address active and passive motion, weight-bearing and nonweight-bearing information, as required by 38 C.F.R. § 4.59. 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 examiner should specifically ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made, to include whether there are additional tests or information that might be sufficient to estimate such additional functional loss during flares. If a neurological abnormality is noted, the examiner should specifically address what nerve(s) is/are affected and whether the impairment is "mild," "moderate" or "severe," fully explaining the rationale behind any opinion rendered. 3. After the completion of the foregoing, the AOJ must review the VA examination report to ensure it is adequate and complies with the above Board instruction, as well as the requirements set forth in the decisions in Sharp and Correia. Specifically, the AOJ must ensure that the left knee joint be tested for pain on both active and passive motion, as well as in weight-bearing and nonweight-bearing. The AOJ must also ensure that the examiner properly addressed the additional functional loss, if any, the Veteran suffered during flares of his right shoulder disabilities. The examination report must be returned to the medical center for full compliance if it is deficient. Only after this action is completed should the AOJ readjudicate the claims for increased rating for all manifestations of the right shoulder disability. 4. If it is determined that the Veteran is unemployable, refer the claim of entitlement to a TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis. 5. After conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).