Citation Nr: 20038045 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 16-35 343A DATE: June 3, 2020 REMANDED Entitlement to an initial rating in excess of 20 percent for service-connected recurrent impingement syndrome of the right shoulder is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to September 1979, June 1983 to September 1983, and from June 1986 to September 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for recurrent impingement syndrome of the right shoulder and assigned an initial 10 percent rating from September 13, 2010. In July 2018, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. In a March 2019 decision, the Board increased the assigned initial rating for service-connected recurrent impingement syndrome of the right shoulder to 20 percent, but no higher, from the date of service connection. The Board also determined that a temporary total disability was warranted for the Veteran’s service-connected right shoulder disability based upon surgical treatment necessitating a period of convalescence from June 26, 2017 to September 27, 2017. The March 2019 Board decision also denied a compensable initial rating for service-connected surgical scar of the right shoulder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a November 2019 Joint Motion for Remand (Joint Motion), which vacated and remanded the part of the Board’s March 2019 decision that denied an initial rating in excess of 20 percent for recurrent impingement syndrome of the right shoulder. 1. Entitlement to an initial rating in excess of 20 percent for service-connected recurrent impingement syndrome of the right shoulder is remanded. As described above, pursuant to the November 2019 Joint Motion, the Court vacated and remanded the Board’s March 2019 decision with respect to the issue of entitlement to an initial rating in excess of 20 percent for service-connected recurrent impingement of the right shoulder. In pertinent part, the parties to the Joint Motion agreed that the Board failed to ensure that the VA examinations relied upon in the decision were adequate. Specifically, the parties stated that the VA examinations of record (October 2012, May 2015, and March 2018) were inadequate for rating purposes because the examiners failed to adequately address the functional impairment of the Veteran’s right shoulder during flare-ups or due to pain, and failed to determine the Veteran’s functional loss in terms of degrees pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). The parties instructed that, upon remand, the Board must obtain an examination that complies with the Court’s holding in Sharp. Accordingly, in order to comply with the Joint Motion, the matter on appeal must be remanded to obtain a VA examination addressing the extent and severity of the Veteran’s service-connected recurrent impingement syndrome of the right shoulder, to include any functional impact due to flare-ups and pain. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The Veteran should be afforded a VA examination to determine the extent of his service-connected recurrent impingement syndrome of the right shoulder. Access to the Veteran’s VA claims file must be made available to the examiner for review in connection with the examination. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). In rendering these findings, the examiner should specifically address the functional impact of the service-connected recurrent impingement syndrome of the right shoulder. The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. In addition, the examiner should address the impact of the service-connected recurrent impingement syndrome of the right shoulder on the Veteran’s industrial activities, including his ability to obtain and maintain substantially gainful employment. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.