Citation Nr: 20009653 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 09-04 771 DATE: February 6, 2020 REMANDED Entitlement to a compensable disability rating for the period prior to January 11, 2012 and entitlement to a rating in excess of 20 percent disabling for the period since July 1, 2012 for a right shoulder disability are remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to August 22, 2016 is remanded. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for the period prior to January 11, 2012 and entitlement to a rating in excess of 20 percent disabling for the period since July 1, 2012 for a right shoulder disability are remanded. The Veteran contends that he is entitled to a compensable disability rating for the period prior to January 11, 2012 and to a rating in excess of 20 percent disabling for the period since July 1, 2012 for his service-connected right shoulder disability, as his symptoms more nearly approximated the criteria for a higher rating. The record reflects that the Veteran was most recently afforded a VA authorized examination in May 2019 concerning his right shoulder disability. However, the Board finds that the examination is inadequate on which to decide the instant claims. In the May 2019 examination, the Veteran reported experiencing flare-ups of his condition and stated that during a flare-up it felt like his shoulder was going to dislocate. He further indicated that he was unable to use his arm during a flare-up. The examiner noted that the examination was not being conducted during a flare-up and indicated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare up. The examiner further indicated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. In elaborating on that conclusion, the examiner stated that “the examination [wa]s neither medically consistent or inconsistent with [V]eteran’s statement describing function loss during a [flare-up] due to not examining [his] shoulder during a [flare-up].” In Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017), the issue concerned boilerplate language many VA examiners had adopted to avoid rendering an opinion as to additional functional loss expressed in degrees of range of motion during flare-ups and repetitive use over time, to wit: “It is not possible without mere speculation to estimate either loss of [range of motion] or describe loss of function during flares because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.” The Court of Appeals for Veterans Claims (Court) spoke to the nature of the evidence at the disposal of most examiners such that estimates of functional loss during flare-ups and repetitive use over time can be made without resorting to speculation. Noting that “neither the law nor VA practice requires that an examination be conducted during a flare for the functional impairment caused by flares to be taken into account,” the Court stated that “DeLuca and its progeny clearly, albeit implicitly, anticipated that examiners would need to estimate the functional loss that would occur during flares” and repetitive use over time. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) (emphasis added). To make such estimate, the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves.” Id. In other words, it is anticipated “that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans.” Id. at 35. If the Veteran’s allegations regarding symptoms during flare-ups and repetitive use over time are inconsistent with other probative evidence of record, neither the examiner nor the Board is required to accept it. Id. at 36 n.5. In the present case, the Veteran reported flare-ups resulting in an inability to use his right arm. He described the flare-ups of his right shoulder as a feeling that his shoulder was going to dislocate. Despite this, the examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limited functional ability with flare-ups. The examiner’s opinion failed to address the discrepancy between the effects of a flare-up described by the Veteran and the conclusion arrived at by the examiner beyond stating that the examination was not being conducted during a flare-up. While the examination report does reflect that the examiner sought information regarding the Veteran’s symptoms during flare-ups, the examiner did not elicit sufficient information regarding the severity, frequency, duration, precipitating and alleviating factors, or the extent of functional impairment during flare-ups or repeated use over time from the Veteran. Additionally, while the examiner indicated that the Veteran exhibited pain in all ranges of motion on examination, the examiner did not indicate at what point the pain began. Thus, the March 2018 examination is inadequate. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (explaining that when an examiner fails to either (1) address functional loss during flare-ups or repetitive use over time, or (2) demarcate whether and at what point during the range of motion testing the Veteran experienced any limitation of motion that was specifically attributable to pain, the examination lacks the detail necessary to permit the assignment of a disability rating). Accordingly, a new examination in necessary on remand which includes adequate information regarding the Veteran’s claimed flare-ups and estimates any functional impact, and which includes information regarding the point at which painful motion begins on range of motion testing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to a TDIU for the period prior to August 22, 2016 is remanded. The Veteran contends that he is entitled to a TDIU for the period prior to August 22, 2016, as his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment before that time. As discussed in Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), an increased rating claim inherently includes a claim for entitlement to a TDIU. See Rice, 22 Vet. App. at 454 (when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability). The record reflects that the Veteran has not worked on a full-time basis since approximately 1990, and as the Veteran submitted Social Security Administration (SSA) records, received by VA on February 6, 2006, indicating that his disabilities, including his lower back and right shoulder disabilities, rendered him unable to work, the issue of entitlement to a TDIU has been raised for the period prior to August 22, 2016 and is part of the instant appeal. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. A total disability rating may be assigned where the combined rating for the Veteran’s service-connected disabilities is less than total if the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of defining a disability of either 60 percent or 40 percent under 38 C.F.R. § 4.16(a), the following will be considered one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single incident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple injuries incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). The record reflects that prior to August 22, 2016, the Veteran is currently rated with a combined disability rating of 60 percent disabled, with the exception of a temporary 100 percent rating for convalescence from March 6, 2012 to July 1, 2012, from January 11, 2012. Prior to January 11, 2012, in relevant part, he has a combined disability rating of 30 percent disabled from March 29, 2007 and a rating of 20 percent disabled from June 3, 2004. Thus, the Veteran does not currently meet the criteria for entitlement to a TDIU on a schedular basis prior to August 22, 2016. However, a decision which increases the rating for the Veteran’s right shoulder disability during the relevant period could affect his entitlement to a TDIU on a schedular basis. Accordingly, the issue of entitlement to a TDIU is intertwined with the issue of entitlement to a compensable rating for the period prior to January 11, 2012 and a rating in excess of 20 percent disabling for the period since January 1, 2012, and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. After any newly obtained evidence has been associated with the claims file, schedule the Veteran for an examination with an appropriately qualified examiner to determine the nature and severity of his right shoulder disability. The entire claims file, including a copy of this remand, must be made available to the examiner and the examination report must reflect that such review was completed. Any appropriate testing should be conducted. The examiner should ask the Veteran to provide information regarding his flare-ups and functional loss with repeated use over time, such as the severity, frequency, duration, precipitating and alleviating factors, or the extent of functional impairment. To comply with the Court’s decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate the severity of any additional limitation of motion during flare-ups or repetitive use over time with sufficient detail that would allow the Board to determine the severity of the Veteran’s right shoulder disability under such conditions. The examiner should also indicate at what point pain begins during range of motion testing for all applicable ranges of motion. Testing should be accomplished in weight bearing and non-weight bearing and active and passive motion. The examiner must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of   knowledge in the medical community at large and not those of the particular examiner. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ferguson, Associate 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.