Citation Nr: 1823748 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-34 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating in excess of 10 percent for separation of the AC joint with rotator cuff tear and degenerative joint disease (DJD) of the left shoulder (hereinafter a left shoulder disability). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Jasmin C. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1975 to February 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The matter was subsequently transferred to the RO in Atlanta, Georgia. The Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets this delay, the Board finds that additional development is required prior to adjudication of the Veteran's claim. The Veteran contends that his service-connected left shoulder disability warrants a higher rating than initially assigned. A 10 percent rating is effective from January 26, 2013. The Veteran received VA examinations in May 2013 and November 2016. However, this claim must be remanded for a new examination that complies with Correia v. McDonald, 28 Vet. App. 158 (2016). In a recent precedential decision, the U.S. Court of Appeals for Veterans Claims (Court) held that for VA examinations to be adequate for rating musculoskeletal disabilities, they must record range of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. Correia, 28 Vet. App. 158 at 169-70 (citing 38 C.F.R. § 4.59 (2016)). If the examiner is unable to conduct the required testing, or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Id. at 170. The May 2013 and November 2016 VA examinations provide range of motion results for the left shoulder, but do not specify the type of testing on which these results were based (i.e. active or passive, weight-bearing or nonweight-bearing), or provide results for each type of test, as required under Correia. If only active range-of-motion testing was performed, and the other tests were deemed not necessary or possible, the examiner did not state this in the report. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The issue of left shoulder disability is therefore remanded, as the record does not reflect that the Veteran has been afforded an adequate VA examination as discussed in Correia. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his service-connected left shoulder disability. The claims folder and a copy of this REMAND must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examination should be performed in accordance with the Disability Benefits Questionnaire(s) (DBQs). The examiner must address the severity and effects of the Veteran's disability. In particular, the VA examination must include range of motion testing for the left shoulder in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability of the left shoulder 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. The VA examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. Any opinions expressed by the examiner must be accompanied by a complete rationale. 2. Thereafter, readjudicate the issue on appeal. If the benefits sought remain denied, provide the Veteran with a supplemental statement of the case, and afford him a reasonable opportunity to respond before the file is returned to the Board for further consideration. 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 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). _________________________________________________ JENNIFER HWA 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).