Citation Nr: 18100737 Decision Date: 04/20/18 Archive Date: 04/20/18 DOCKET NO. 14-25 229 DATE: April 20, 2018 ISSUES DECIDED: 0 ISSUES REMANDED: 1 REMANDED ISSUE Entitlement to a disability rating in excess of 20 percent for recurrent dislocation of the right shoulder, with degenerative joint disease (DJD) is remanded for additional development. The Veteran served on active duty from March 1976 to December 1981. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Right Shoulder Disability The Veteran asserts that his right should disability is worse than the 20 percent currently assigned. The Veteran last underwent a VA examination for his right shoulder in November 2016. The U.S. Court of Appeals for Veteran’s Claims (the Court) issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that 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.” Here, the Board finds the November 2016 examination report inadequate for rating purposes in light of the Court’s decisions in Correia and Sharp. The report of that examination reflects that range of motion measurements were taken of the right shoulder. However, the report only includes a single set of range of motion measurements for the right shoulder (e.g., flexion and extension), and no indication as to whether such measurements are for active or passive motion, or in weight-bearing and non weight-bearing. Given the lack of specificity noted on the examination report, the Board has no choice but to conclude that all requested measurements were not taken and/or provided. See 38 C.F.R. § 4.59 (2017); Correia, 28 Vet. App. at 168-70. Additionally, the examiner noted there were no imaging tests performed but failed to consider the April 2013 MRI of the right shoulder that found a tear of the supraspinatus with scar tissue. Thus, a new examination to obtain appropriate testing results and clinical findings-based on full consideration of the Veteran’s documented medical history and assertions, and which includes more detailed range of motion testing information, as referenced above-is required to assess the severity of the Veteran’s service-connected right shoulder disability. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Missing Records Additionally, the Board notes the Veteran’s full military personnel file is missing from the record and the RO has not attempted to obtain it. This is particularly important because the Form DD-214 documenting the Veteran’s service from 1978 to 1981indicates he had two years and eight months of prior active service. However, the Form DD-214 for that prior period of service is not of record. On remand all relevant ongoing medical records should be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to specifically include the Veteran’s complete military personnel file and all Forms DD-214. If the records do not exist, or additional attempts to obtain these records would be futile, the record should be annotated to reflect such, to specifically include a formal finding of unavailability, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Arrange for the Veteran to undergo VA examination, for evaluation of his service-connected right shoulder disability, by an appropriate medical professional. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions, to specifically include the April 2013 right shoulder MRI. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the right shoulder (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing (as appropriate). All testing should be clearly labeled within the examination report. 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 so state and explain why. On range of motion testing, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right shoulder. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right shoulder due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 3. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or 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 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). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel