Citation Nr: 20006486 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 11-20 658 DATE: January 28, 2020 REMANDED The claim of entitlement to a disability rating higher than 20 percent prior to August 22, 2019, and a rating higher than 30 percent from that date, for residuals of rotator cuff tear with impingement syndrome of the right shoulder is remanded. The claim of entitlement to a disability rating higher than 10 percent prior to June 19, 2012, and a rating higher than 20 percent from that date, for lumbosacral strain with degenerative joint disease (DJD) is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected residuals of rotator cuff tear with impingement syndrome of the right shoulder and lumbosacral strain with DJD, to include on an extra-schedular basis pursuant to 38C.F.R.§4.16(b), is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1992 to June 1996. This appeal to the Board of Veterans Appeals (Board) arose from August 2010 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), in Honolulu, Hawaii. In the August 2010 decision, the RO, inter alia, continued the 10 percent disability rating for the Veteran’s lumbosacral strain with DJD and denied entitlement to a TDIU. In the December 2010 decision, the RO decreased the disability rating for the right shoulder rotator cuff tear with impingement syndrome from 20 percent to 10 percent, effective March 1, 2011. The Veteran disagreed with these respective RO decisions, and perfected an appeal as to these claims. During the pendency of the appeal, in a July 2012 rating decision, the RO granted the Veteran an increased, 20 percent rating for the right shoulder disability and an increased, 20 percent rating for the lumbosacral spine disability, each effective June 20, 2012. In June 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge held at the RO. In March 2015, the Board characterized the current appeal to encompass a claim for a TDIU due to the service-connected disabilities at issue in this appeal (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)), and restored the 20 percent disability rating for the service-connected right shoulder disability. Also, in March 2015, the Board remanded the remaining TDIU and IR claims on appeal to the agency of original jurisdiction (AOJ) for additional development. Following the Board’s remand, in a July 2017 rating decision, the RO found that there was a clear and unmistakable error in the assigned effective date for the lumbosacral spine disability, and assigned an effective date of June 19, 2012, for the 20 percent rating for the disability. The Board remanded the Veteran’s claims to the AOJ again in January 2018, and February 2019, for still further development. Following the February 2019 remand, in an August 2019 rating decision, the AOJ increased the disability rating for the right shoulder disability to 30 percent, effective August 22, 2019. Unfortunately, the Board finds that still further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Board’s February 2019 remand, the Veteran was afforded VA-contracted examinations of his right shoulder and lumbosacral spine in August 2019. However, as with prior examination findings, the August 2019 VA examination findings were not substantially compliant with Board remand directives. In this regard, the Board specifically directed that range of motion testing of the right shoulder and lumbosacral spine be conducted on both active motion and passive motion and in both weight-bearing and non-weight-bearing, pursuant to a decision of the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). If the examiner was unable to conduct the required testing or concluded that the required testing was not necessary, he or she was directed to clearly explain why that was so. While range of motion testing was conducted during the August 2019 examinations, and while the examiner indicated that there was objective evidence of pain on passive range of motion testing and in non-weight bearing, there were no range of motion findings in both passive and active motion and in both weight bearing and non-weight bearing, as directed in the February 2019 remand. Additionally, pursuant to the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Board specifically directed that the examination reports describe the frequency, duration, characteristics, severity, and functional loss during flare-ups of the right shoulder and lumbosacral spine disabilities. The August 2019 examination reports do not provide these descriptions. Further, in the examination report for the Veteran’s lumbosacral spine disability, the Board observes that bilateral straight leg raising testing yielded positive results, thereby suggesting radiculopathy, as noted in the examination report. In spite of these results, and in spite of the Veteran’s historical reports of having radiation of the lumbosacral spine disability into the right and left thighs, including during VA evaluation in September 2004 and May 2010, the examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms of radiculopathy. Clarification of the examination findings is required. See 38 C.F.R. § 4.2. Given the noted deficiencies in the August 2019 VA-contracted examination reports, the Board finds that remand of the higher rating claims is warranted in order to obtain adequate clinical findings, including findings responsive to the considerations addressed in Correia and Sharp. See 38 C.F.R. § 4.2; Stegall, supra. Regarding the Veteran’s TDIU claim, as adjudication of the claims for the higher ratings may bear on the manner in which the TDIU claim is considered, the Board’s consideration of the TDIU claim, at this juncture, would be premature. Therefore, as the TDIU issue is inextricably intertwined with the remanded claims on appeal, the Board will defer TDIU adjudication until the remaining claims are resolved. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Finally, potentially relevant to all claims, the Board notes that the Veteran’s VA treatment records indicated that he was reestablishing VA care in January 2018, and that in the February 2019 remand, the Board instructed the AOJ to obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since March 2018. Apparently in response to this directive, the AOJ obtained a duplicate copy of the Veteran’s VA treatment records dated between October 2000 and March 2018. No records dated since March 2018 were obtained on remand, and there is no indication in the record whether more recent records were available. Thus, prior to arranging for the above-requested VA examinations, to ensure that all due process requirements are met and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Specifically, the AOJ must obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since March 2018. See 38 C.F.R. § 3.159(c). The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. Adjudication of each increased rating claim should include consideration of whether any further staged rating of either disability is appropriate. These matters are hereby REMANDED for the following action: 1. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since March 2018. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide a claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of his right shoulder and lumbosacral spine disabilities 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 examiner, and each examination report should reflect consideration of the Veteran’s documented medical history and assertions. 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 (expressed in degrees) of the right shoulder and lumbosacral spine on both active motion and passive motion, and in both weight bearing, and non-weight bearing (as appropriate). The examiner should also conduct the same range of motion testing for the left shoulder, for comparison purposes. 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. The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the either the lumbosacral spine or right shoulder disabilities. If pain on motion is observed, the examiner should indicate the point at which pain begins. Also, for each disability, if the examination is not conducted during a flare-up, 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 due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. For reported flare-ups, the examiner must describe the frequency, duration, characteristics, severity, and functional loss during flare-ups. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Also for each disability, the examiner should clearly indicate whether the Veteran has any ankylosis, and, if so, the extent of such ankylosis, and whether the ankylosis is favorable or unfavorable. Specific to the lumbar spine, given evidence of lumbosacral spine radiculopathy of record, the examiner should also indicate whether the Veteran has radiculopathy and any other neurological manifestation(s) of lumbosacral spine disability. If so, for each identified manifestation, the examiner should clearly indicate whether such constitutes a separately ratable disability, and, if so, should assess the severity of such disability as mild, moderate, moderately severe, or severe. If not, the examiner should reconcile this finding with evidence of record of signs and symptoms of radiculopathy. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. 268. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the higher rating and TDIU claims on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, for each higher rating claim, consideration of whether any further staged rating is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.