Citation Nr: 20028096 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 15-11 842 DATE: April 22, 2020 REMANDED Entitlement to service connection for a neck disorder, to include as secondary to service-connected shoulder and back disabilities, is remanded. Entitlement to an evaluation in excess of 30 percent for right shoulder acromioclavicular joint osteoarthritis and superior labral tear status post repair is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1995 to April 2002. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2018. A transcript is of record. In a September 2018 decision, the Board, in pertinent part, denied entitlement to service connection for a neck disorder and to an evaluation in excess of 30 percent for right shoulder acromioclavicular joint osteoarthritis and superior labral tear status post repair. The Veteran appealed the September 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion) and vacated the September 2018 Board decision denying the issues listed above. In light of the Joint Motion, the Board finds that additional development is needed prior to adjudication of the claims. Regarding the claim for service connection claim for a neck disorder, the Board relied on February 2013 and October 2017 negative nexus opinions. However, the parties to the Joint Motion found that neither examination adequately addressed aggravation. Therefore, the Board finds that additional VA medical opinion is needed. Regarding the claim for an increased evaluation for the service-connected right shoulder disability, the Board relied on a June 2017 VA examination report. The examiner had indicated that pain upon range of motion caused functional loss, but the parties to the Joint Motion noted that the examiner did not identify at what point of range of motion the pain manifested. The examiner had also stated that pain and lack of endurance limited functional ability during flare-ups and with repeated use over time; however, the parties to the Joint Motion also observed that the examiner did not describe the additional functional loss resulting from either flare-ups or repeated use in terms of range of motion. Therefore, the Board finds that an additional VA examination is needed. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his neck and right shoulder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology any neck disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a neck disorder that is either caused by or aggravated by his service-connected shoulder and back disabilities. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran’s service-connected disabilities did not cause his current neck disorder, the examiner should still address whether those disabilities could have worsened his neck disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After obtaining any outstanding records, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right shoulder disability. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In particular, he or she should provide the range of motion of the left and right shoulders in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. 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 provide an explanation for this determination in the report. The examiner should also state whether there is any ankylosis; malunion, recurrent dislocation, fibrous union, nonunion (false flail joint), or loss of head (flail shoulder) of the humerus; or, any impairment of the clavicle or scapula. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should be noted, as should any additional disability due to these factors (including any additional loss of motion). In light of the Joint Motion, the examiner should indicate whether pain results in functional loss, and if so, at what point of range of motion the pain manifests. He or she should also describe an additional functional loss resulting from repeated use, including any additional limitation of motion. The examiner should further discuss any additional functional impairment that occurs during flare-ups, including any additional limitation of motion. To the extent possible, he or she should address the frequency, duration, characteristics, and severity of flare-ups (through an examination, review of the medical records, and/or history provided by the Veteran). If the examination is not provided during a flare-up, and the examiner cannot otherwise opine as to functional loss, he or she must provide an explanation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski 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.