Citation Nr: 19147828 Decision Date: 06/19/19 Archive Date: 06/19/19 DOCKET NO. 08-36 442 DATE: June 19, 2019 REMANDED Entitlement to an initial rating in excess of 10 percent prior to September 19, 2017, for status post fracture right scapula is remanded. Entitlement to a rating in excess of 20 percent from September 19, 2017, for status post fracture right scapula is remanded. REASONS FOR REMAND The Veteran had active military service from August 1984 to August 2004. He testified before the undersigned Veterans Law Judge during a January 2011 hearing. This matter is on appeal from a September 2004 rating decision. Following Board of Veterans’ Appeals (Board) remands in March 2011 and April 2014, this appeal was denied in an October 2014 decision. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2015, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. Following the JMR, the Board remanded this appeal in November 2015 and July 2017, then denied it in a March 2018 decision. The Veteran thereafter appealed this decision to the Court. In an Order dated in November 2018, the Court granted a JMR by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. While the record contains contemporaneous VA examinations regarding the Veteran’s right shoulder disability, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) as discussed in the November 2018 JMR. The most recent September 2017 examiner stated that an opinion regarding range of motion for repetitive use over time could not be provided without resort to speculation as the Veteran was not examined during repetitive use over time. The examiner did not indicate that the speculation was due to lack of knowledge within the medical community; thus, this examination is not adequate. Furthermore, in light of inaequate examinations during this appeal, a retrospective opinion concerning the Veteran's symptomatology since the date of service connection would be beneficial. The matter is REMANDED for the following action: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all records identified by the Veteran, including any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination of the current severity of his right shoulder disability. The most up-to-date Disability Benefits Questionnaire should be utilized. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should also address the effects of the right shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. In addition, if possible, the examiner should provide a retrospective opinion addressing the above (ranges of motion in active motion, passive motion, pain with weight-bearing and without weight-bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups) at each time the right shoulder was previously examined during this appeal with range of motion testing for rating purposes. A complete rationale should be given for all opinions and conclusions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Barstow, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.