Citation Nr: 1809682 Decision Date: 02/14/18 Archive Date: 02/27/18 DOCKET NO. 14-19 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating in excess of 20 percent for a disability of the right shoulder, traumatic arthritis with calcified tendonitis, prior to August 23, 2012, and in excess of 40 percent therefrom. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to May 1971 and from May 1978 to June 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a hearing before a Veterans Law Judge (VLJ) on his VA Form-9 in May 2014. The hearing was scheduled for April 2017, but the Veteran did not appear at the hearing or provide good cause for his failure to appear. Accordingly, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704 (d) (2017). In a January 2014 Statement of the Case (SOC), the issue was characterized as entitlement to an effective date earlier than August 23, 2012, for the award of a 40 disability rating for service-connected right shoulder, traumatic arthritis with calcified tendonitis. However, as noted on the title page, the issue has been recharacterized as entitlement to increased rating for the time periods indicated. Such recharacterization encompasses the earlier effective date claim and better reflects the scope of the appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a new VA examination for his right shoulder in August 2012 following his reports of increased symptomology. Since the examination, however, the Court has found that examinations of musculoskeletal disabilities must comply with the language of 38 C.F.R. § 4.59 (2017). See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2017). As a result, VA examinations must test range of motion studies in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The August 2012 VA examination report does not comply with Correia, because it satisfies some but not all of the noted requirements. The Veteran must be afforded a new VA shoulder examination that complies with Correia and includes all of the necessary information as set forth in § 4.59. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA treatment records. Any additional treatment records identified by the Veteran should be obtained and associated with his claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. 2. Schedule the Veteran for a VA examination to address the current severity of his right shoulder. All indicated studies should be completed, including range of motion testing. All findings must be fully reported. (a) The report should discuss the examiner's objective evaluation for any weakened movement, excess fatigability with use, incoordination, and painful motion. (b) To be compliant with Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the clinician must address range of motion loss specifically due to pain and any functional loss during flare-ups. The clinician is to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. These determinations should, if feasible, be portrayed in terms of degrees of additional range of motion loss due to pain on use or during flare-ups. (c) To comply with Correia, testing of the range of motion must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges. If such are not applicable, the examiner should state such along with an explanation. (d) If it is not feasible to provide the degrees in which there is an additional loss in range of motion during flare-ups or repeated use over time or any range of motion testing, then the clinician must provide an adequate explanation as to why. (e) Findings of the opposite (left) shoulder must also be included, unless the examiner states that the left shoulder is damaged (abnormal). 3. Following completion of the above, adjudicate the claim on appeal. If the benefits sought are not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ KELLI A. KORDICH 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).