Citation Nr: 20040802 Decision Date: 06/16/20 Archive Date: 06/16/20 DOCKET NO. 14-34 399A Date: June 16, 2020 ORDER 1. Entitlement to a disability evaluation in excess of 10 percent for limitation of motion of the left knee prior to August 22, 2016 is denied. 2. Entitlement to a disability evaluation of 30 percent disabling for left knee limitation of flexion and 50 percent disabling for left knee limitation of extension, from August 22, 2016 to January 26, 2017, is granted, subject to the laws and regulations governing the payment of monetary benefits. 3. Entitlement to a disability evaluation in excess of 30 percent for limitation of motion of the left knee from March 1, 2018 is denied. REMANDED 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to a Total Disability rating based on Individual Unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to August 22, 2016, the Veteran’s service-connected left knee disability did not manifest in flexion limited to 30 degrees or less or in extension limited to 15 degrees or more. 2. From August 22, 2016 to January 26, 2017, the Veteran’s service-connected left knee disability manifested in a limitation of flexion more nearly approximating a rating for flexion limited to 15 degrees and in a limitation of extension more nearly approximating a rating for extension limited to 45 degrees. 3. From March 1, 2018, the Veteran’s left knee replacement has not manifested in chronic residuals consisting of severe painful motion or weakness in the affected extremity, nor has it manifested in residual weakness, pain, or limitation of motion warranting a disability rating higher than 30 percent disabling. CONCLUSIONS OF LAW 1. Prior to August 22, 2016, the criteria for entitlement to a disability in excess of 10 percent for left knee limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. 2. From August 22, 2016 to January 26, 2017, the criteria for entitlement to a disability rating of 30 percent, but no higher, for left knee limitation of flexion and a disability rating of 50 percent, but no higher, for left knee limitation of extension, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. 3. From March 1, 2018, the criteria for entitlement to a disability rating in excess of 30 percent for left knee limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5260, 5261, and 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1978 to June 1979. He received the Good Conduct Medal. The Board of Veterans’ Appeals (Board) expresses its gratitude to the Veteran for his honorable service to the country. These matters come before the Board on appeal from a June 2012 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in April 2018, at which time the Board remanded the claims to the RO for further development. With respect to the claims decided herein, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (see also Donnellan v. Shinseki, 24 Vet. App. 167, 176, stating that substantial compliance, rather than strict compliance, is required). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss every piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. Increased Disability Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Furthermore, the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application for increased compensation is received within one year from such date. 38 U.S.C. § 5110(b)(3). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is deemed unnecessary. Johnston v. Brown, 10 Vet. App. 80 (1997). Under 38 C.F.R. § 4.68, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation of the elective level, were amputation to be performed. Diagnostic Codes 5162 through 5164, regarding amputation approximately at the knee, only allow for a maximum 60 percent disability rating. In cases wherein reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Therefore, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Similarly, where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to a disability rating in excess of 10 percent for limitation of motion of the left knee, prior to August 22, 2016 Historically, the Veteran was granted service connection for limitation of motion of the left knee in a January 2004 rating decision, which assigned a disability evaluation of 10 percent disabling under Diagnostic Code 5260, with an effective date of October 22, 2003. See Rating Decision dated January 27, 2004. In correspondence received by VA on August 16, 2011, the Veteran requested an increased disability rating of his service-connected left knee disorder. See Third Party Correspondence, received by VA on August 16, 2011. Therefore, for the initial period of the Veteran’s left knee disability evaluation, the Board’s analysis is focused on consideration of evidence from one year prior to VA’s receipt of the Veteran’s application for an increased disability evaluation – that is, August 16, 2010 – to January 26, 2017, the time at which the Veteran was awarded a 100 percent disability evaluation for convalescence following the replacement of his left knee. For the reasons discussed below, the Board has divided this timeframe into two distinct periods of time, based on the information conveyed by the medical evidence of record as it pertains to the severity of Veteran’s service-connected left knee disability. Notably, the appropriate Diagnostic Codes for rating limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a Veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. Flexion of the knee to 140 degrees is considered full, and extension to 0 degrees is considered full. 38 C.F.R. § 4.71, Plate II. Arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Code(s) for the specific joint(s) involved. In a May 2012 VA examination for his left knee disability, a clinician diagnosed the Veteran with osteoarthrosis of the left knee. See VA Examination dated May 15, 2012. The clinician further noted that the left knee’s flexion was limited to 70 degrees and the left knee’s extension demonstrated no limitation of motion. The Veteran reported moderate flare-ups of the knee condition occurring approximately every other week. The Veteran further reported a functional impact manifesting in knee pain, difficulty carrying objects, and difficulty standing or walking for prolonged periods of time. The record reflects that the Veteran was afforded a hearing with a Decision Review Officer (DRO) in June 2014 at the St. Petersburg, Florida RO. At that time, the Veteran asserted that his service-connected left knee limitation of motion had worsened. See Hearing Transcript dated June 16, 2014. The Veteran verbalized that his left knee range of motion was limited to approximately 90 degrees, although he did not indicate specifically whether this was the extension or flexion of the knee. Because the Veteran’s left knee disability did not manifest in flexion limited to 30 degrees or less, or extension limited to 15 degrees or more, a higher disability rating is not warranted for the period prior to August 22, 2016. See VA Examination dated May 15, 2012; see also 38 C.F.R. § 4.71a., Diagnostic Codes 5260 and 5261. Thus, the Veteran’s left knee limitation of motion did not satisfy the criteria required of a disability rating in excess of 10 percent. An additional disability rating under Diagnostic Codes 5256, 5257, 5258, 5259, 5262, 5263 is inappropriate in this case as the Veteran’s left knee disability does not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. As the preponderance of the evidence is against the claim, the “benefit-of-the-doubt” doctrine is not applicable; and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 10 percent for limitation of motion of the left knee, from August 22, 2016 to January 26, 2017 The record also contains, in pertinent part, documentation from a primary care physician from August 2016. The examiner noted that the Veteran’s service-connected left knee disability resulted in a limited range of flexion to 20 degrees and extension to approximately 90 degrees. See medical treatment records dated August 22, 2016. The examiner reported that the Veteran experienced severe pain and interference with motion due to the left knee disability. The Board determines that this medical opinion is particularly probative because it depicts the Veteran’s left knee disability during a presumed flare-up. The Veteran sought medical attention because his left knee caused him more pain than usual; and the medical assessment he underwent at that time demonstrated his left knee limitation of motion during chronic pain. Given the limitation of motion documented in this examination, the Board finds that, for the period from August 22, 2106 (the date of the medical evaluation) to January 26, 2017, the Veteran’s disability picture for limitation of flexion of the knee more nearly approximates a disability evaluation of 30 percent disabling under Diagnostic Code 5260 (stating that flexion limited to 15 degrees warrants a 30 percent disability rating, whereas flexion limited to 30 degrees warrants a 20 percent disability rating). The August 2016 examiner reported that the range of motion of the Veteran’s left knee was limited to flexion of 20 degrees, which is nearer to the rating criteria for a 30 percent disability evaluation than that of a 20 percent disability evaluation. The Board also finds that, because the Veteran’s limitation of motion manifested in extension limited to 90 degrees, a disability rating of 50 percent under Diagnostic Code 5261 is also warranted. See VAOPGCPREC 9-2004 (stating that if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for both flexion and extension under Diagnostic Codes 5260 and 5261 are warranted). The August 2016 examiner documented a limitation of extension to 90 degrees, which more nearly approximates the limitation of 45 degrees considered by a 50 percent rating, the highest rating permitted under the Diagnostic Code. Notably, under 38 C.F.R. § 4.68, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation of the elective level, were amputation to be performed. Diagnostic Codes 5162 through 5164, regarding amputation approximately at the knee, only allow for a maximum 60 percent disability rating. Thus, a disability evaluation in excess of 60 percent is not permissible under applicable statutory regulations. The Board has considered whether there is any other basis for granting further increased and/or additional ratings but has found none. 3. Entitlement to a disability rating in excess of 30 percent for limitation of motion of the left knee, from March 1, 2018 The Veteran underwent a total left knee replacement on January 26, 2017. See, e.g., VA examination dated October 12, 2017. The RO issued a rating decision in November 2017 that awarded the Veteran a temporary 100 percent rating for convalescence following his left knee surgery, under Diagnostic Code 5055, effective from January 26, 2017 to March 1, 2018. Under Diagnostic Code 5055, a 100 percent rating is warranted for 1 year following implantation of a knee replacement prosthesis. Thereafter, with chronic residuals consisting of severe painful motion or weakness, in the affected extremity, a 60 percent rating is warranted. With intermediate degrees of residual weakness, pain, or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256, 5261, or 5262, with a minimum rating of 30 percent. (NOTE (1): The 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge.) Because the award of a 100 percent disability rating for the time period of January 26, 2017 to March 1, 2018 represents the maximum disability benefit permitted under law, the Board will continue the remainder of its analysis with a focus on the timeframe from March 1, 2018 to the present. Subsequent to the period of convalescence, the Veteran’s knee disability has been rated as 30 percent disabling under Diagnostic Code 5055. The Veteran contends that the severity of his left knee disability warrants a higher rating. Specifically, he requests a disability evaluation of 60 percent under Diagnostic Code 5055 based on “chronic residuals consisting of severe painful motion or weakness.” See Appellate Brief, dated March 12, 2020. The Veteran furthermore asserts that both the October 2017 and the February 2020 VA examinations conducted for his left knee disability are inadequate, as the former was not Correia and Sharp compliant and as the latter contained inaccurate information regarding the Veteran’s report of left knee pain upon weight-bearing, walking, or standing. Id. (See also Correia v. McDonald, 28 Vet. App. 158 (2016), stating that an adequate orthopedic examination should record the range of motion for pain on active motion and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint; see also Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), stating that an examination does not need to be conducted during an actual flare-up to account for additional functional impairment, but that examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record.) The evidence of record pertaining to the severity of the Veteran’s service-connected left knee disability from March 1, 2018 to the present consists of an August 2019 medical opinion, a September 2019 addendum medical opinion, and an examiner’s report from a February 2020 VA examination. The August 2019 examiner reportedly reviewed the Veteran’s claims file and concluded simply that the medical evidence of record did not suggest that pain, weakness, fatigability, incoordination, or flare-ups significantly limit the Veteran’s functional ability of his left knee. See medical opinion dated August 30, 2019. Following submission of the August 2019 medical report, the RO asked another examiner to clarify the medical opinion that had been furnished. See addendum medical opinion dated September 25, 2019. This examiner also determined, inconsistent with the information of record, that the Veteran did not experience flare-ups. As noted above, the Veteran asserts that this medical opinion (and addendum opinion) are inadequate. The Board agrees. Neither examiner personally evaluated the Veteran, and neither examiner took into consideration the Veteran’s lay statements concerning pain and flare-ups of his left knee disability. The Veteran was afforded another VA examination for his left knee disability in February 2020. At that time, a clinician reviewed the Veteran’s claims file and personally examined the Veteran. See VA examination dated February 28, 2020. She diagnosed the Veteran with degenerative arthritis of the left knee and noted that the Veteran had previously undergone a total left knee replacement and still experiences limitation of motion of the left knee. She further noted that the Veteran reported chronic stiffness in his left knee, with chronic pain rated as a “5” or “6” out of “10.” The Veteran additionally reported occasional flare-ups of the left knee, lasting approximately 2-3 days, with pain levels at a “7” or “8,” whenever he walks for half an hour or more. The clinician noted that the Veteran experiences pain with prolonged standing or walking and that the Veteran’s left knee demonstrated an abnormal range of motion. Specifically, she documented that the Veteran’s left knee flexion was limited to 110 degrees (out of 0-140 degrees) and that his left knee extension was also limited to 110 degrees (out of 140-0 degrees), with each test causing pain to the Veteran’s knee. The functional impact attributed to the left knee disability is a limited ability to bend the knee. Finally, the clinician concluded that the residuals of the total left knee replacement experienced by the Veteran resulted in “[i]ntermediate degrees of residual weakness, pain[,] or limitation of [motion].” The Veteran contends that this examination is also inadequate. Specifically, he asserts that the examiner did not accurately depict the functional loss of the Veteran’s left knee flare-ups and that the medical report contains an inaccurate assessment of the Veteran’s experiences with pain, weakness, fatigability, or incoordination during his flare-ups. See Appellate Brief at 3. However, the Board finds the February 2020 VA examination adequate for purposes of determining the severity of the Veteran’s left knee limitation of motion. The clinician personally examined the Veteran, reviewed his medical history, conducted range of motion testing, and, moreover, provided the information necessary to assign an evaluation of the disability. Furthermore, the Board finds that the preponderance of the evidence is against the claim for entitlement to a disability rating in excess of 30 percent from March 1, 2018. Because the Veteran does not exhibit “chronic residuals consisting of severe painful motion or weakness” in his left knee, a 60 percent disability evaluation is not warranted. As the examiner concluded that the Veteran experiences intermediate degrees of weakness, pain, or limitation of motion, his left knee disability is to be rated by analogy to Diagnostic Codes 5256, 5260, and/or 5261, as appropriate, with an assigned minimum rating of 30 percent. Because the Veteran’s left knee does not exhibit ankylosis, Diagnostic Code 5256 does not apply; and because the Veteran’s left knee limitation of flexion and extension are not severe enough to warrant a higher disability rating than 30 percent under Diagnostic Codes 5260 or 5261, the minimum disability evaluation of 30 percent is the highest disability rating warranted that is warranted. The Board has considered whether there is any other basis for granting further increased and/or additional ratings but has found none. Because the preponderance of the evidence is against the claim, the “benefit-of-the-doubt” doctrine is not applicable; and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran asserts that his current right shoulder disability resulted from an in-service fall and that he has experienced shoulder problems continuously since his active duty service. See VA Form 21-4138, Notice of Disagreement, dated June 29, 2012. The Veteran acknowledges that he did not seek contemporaneous medical treatment for the injuries sustained in his fall but notes that he has seen multiple medical professionals in the years since his injury. See, e.g., DRO Hearing Testimony, dated June 16, 2014 at 8. Indeed, references to longstanding right shoulder pain and limited range of motion are well-documented in the record. See, e.g., medical treatment records dated July 10, 2008. The record further reflects diagnoses of bicipital tendon tear and glenohumeral joint osteoarthritis of the right shoulder. See VA examination dated May 9, 2019. Pursuant to the Board’s April 2018 remand, the Veteran was afforded a VA examination for his claimed right shoulder disability. In the May 2019 examination, a clinician noted that the Veteran “does not have a current diagnosis” associated with his right shoulder but also diagnosed the Veteran with bicipital tendon tear and glenohumeral joint osteoarthritis. See VA examination dated May 9, 2019. The examiner then opined that the Veteran’s claimed right shoulder condition was less likely than not incurred in or caused by an in-service injury. In so finding, she reasoned that the Veteran’s service treatment records are silent for any injury of, or treatment for, the right shoulder. The Veteran contends that the May 2019 VA examination was inadequate. See VA Form 21-4138, dated February 20, 2020. He remarked that the examiner did not properly assess his disability and that she did not acknowledge a “failed surgery,” wherein a faulty mechanism, which was later recalled by the manufacturer, was placed in his right shoulder joint. See id. The Board agrees that the May 2019 medical examination is inadequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (“[O]nce the Secretary undertakes the effort to provide an examination [...] he must provide an adequate one.”). Specifically, the examiner’s report was internally inconsistent and the rationale provided was based on an absence of in-service documentation for a right shoulder disorder. The mere absence of treatment records should not be the primary basis for a negative opinion. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (noting that an examiner cannot rely on the absence of medical records corroborating an injury to conclude that there is no relationship between a veteran’s current disability and his military service (citing Smith v. Derwinski, 2 Vet. App. 137, 140 (1992)). As noted earlier, the Veteran maintains that he did not seek medical treatment for the disorder while on active duty service. Therefore, the Board finds that another remand is necessary in order to afford the Veteran an adequate VA examination or medical opinion before the claim for entitlement for service connection for a right shoulder disability can be properly adjudicated on its merits. 2. Entitlement to a TDIU is remanded. As an initial matter, the Board notes that a review of the record indicates that the RO issued a rating decision in March 2020, pursuant to the Veterans Appeals Improvement and Modernization Act of 2017, denying the Veteran entitlement to a TDIU. However, the issue of entitlement to a TDIU has been pending in the legacy system since August 2011 and was formerly remanded by the Board in April 2018. Thus, the Board properly has jurisdiction over the issue at this time. The Veteran contends that his collective service-connected disabilities prevent him from maintaining substantially gainful employment. See, e.g., VA Form 21-0820 Report of General Information, dated August 30, 2011. He furthermore asserts that his right shoulder disability has rendered him unemployable. See, e.g., VA Form 21-8940, Application for Increased Compensation based on Unemployability, dated August 25, 2014. Indeed, the evidence of record demonstrates that the Veteran reported to a medical provider that the functional impact of his right shoulder disability required him to sell his business. See medical treatment records dated July 10, 2008. As the Veteran is not currently service-connected for his right shoulder disability, and as the issue of service connection for his right shoulder disability is remanded and could significantly impact a decision on the merits of the Veteran’s claim for a TDIU, the Board finds that the two issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are “inextricably intertwined” where action on one matter could have a “significant impact” on the other). Thus, adjudication of entitlement to a TDIU must be deferred pending the resolution of the remanded claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. Please secure for the Veteran’s claims file copies of clinical records (not already of record) of all VA and/or non-VA treatment the Veteran has received for a right shoulder disability or relating to his claimed unemployability, then associate any collected records with the Veteran’s claims file. 2. After the above action is completed, please refer the claim for entitlement to service connection for a right shoulder disability to an appropriate clinician for a nexus opinion as to the nature and etiology of the Veteran’s right shoulder disability. The Veteran’s claims file must be made available to and reviewed by the clinician. ONLY IF the clinician determines that another examination is deemed necessary in order to answer the questions below, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of his claimed right shoulder disability. The clinician is asked to address the following: Is it least as likely as not (50 percent probability or greater) that the Veteran’s right shoulder disability, to include bicipital tendon tear and glenohumeral joint osteoarthritis, had its onset in or is otherwise etiologically related to the Veteran’s active duty military service, to include his claimed injuries sustained when falling down the stairs? If the basis of a negative nexus opinion is the absence of evidence of treatment in the Veteran’s in-service medical records, the clinician must explain whether (1) treatment for a right shoulder injury or its symptoms would have been noted in the Veteran’s treatment records at the time; and (2) the Veteran would have sought treatment for a right shoulder injury or its symptoms at the time. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptomatology. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the above development is completed, readjudicate the inextricably intertwined issue of entitlement to a TDIU. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the   Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.