Citation Nr: 21000950 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-20 217 DATE: January 6, 2021 REMANDED Entitlement to an initial increased rating above 10 percent prior to May 23, 2016, for right shoulder (major) degenerative joint disease (DJD) is remanded. Entitlement to an increased rating above 20 percent since May 23, 2016, for right shoulder (major) DJD is remanded. Entitlement to an initial increased rating above 10 percent prior to June 6, 2017, for cervical spine degenerative disc disease (DDD) is remanded. Entitlement to an increased rating above 20 percent since June 6, 2017, for cervical spine DDD is remanded. REASONS FOR REMAND The Veteran had qualifying service from February 1968 to February 1970. In June 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In a January 2018 Decision, the Board, in pertinent part, remanded: (a) entitlement to an initial increased rating above 10 percent for right shoulder DJD; and (b) entitlement to an initial increased rating above 10 percent for cervical spine DDD. In a May 2019 Rating Decision, the agency of original jurisdiction (AOJ), in pertinent part: (a) increased the cervical spine DDD rating from 10 percent to 20 percent effective June 6, 2017; (b) increased the right shoulder DJD rating from 10 percent to 20 percent effective May 23, 2016; (c) granted a separate compensable rating for right upper extremity radiculopathy associated with cervical spine DDD at 40 percent effective April 21, 2011, and at 20 percent effective March 15, 2018; and (d) granted a separate compensable rating for left upper extremity radiculopathy associated with cervical spine DDD at 20 percent effective March 15, 2018. However, because higher ratings are still available, the appeal remains properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In a July 2019 Decision, the Board, in pertinent part, denied: (a) an increased rating above 10 percent prior to May 23, 2016, for the right shoulder DJD; (b) an increased rating above 20 percent since May 23, 2016, for the right shoulder DJD; (c) an increased rating above 10 percent prior to June 6, 2017, for cervical spine DDD; and (d) an increased rating since June 6, 2017, for cervical spine DDD. In a September 2020 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the parts of the July 2019 Board Decision that denied: (a) an increased rating above 10 percent prior to May 23, 2016, for the right shoulder DJD; (b) an increased rating above 20 percent since May 23, 2016, for the right shoulder DJD; (c) an increased rating above 10 percent prior to June 6, 2017, for cervical spine DDD; and (d) an increased rating since June 6, 2017, for cervical spine DDD. 1. Entitlement to an initial increased rating above 10 percent prior to May 23, 2016, for right shoulder (major) DJD When a disability of the joints is evaluated based on limitation of motion, examination findings must be consistent with the holdings in DeLuca, Mitchell, Correia, and Sharp. DeLuca v. Brown, 8 Vet. App. 202 (1995) (examiners must contemplate additional functional loss due to weakness, fatigability, incoordination, or painful motion); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (pain may result in functional loss if it limits the ability to perform normal working movements, even if present only on repetitive motion or during a flare-up); Correia v. McDonald, 28 Vet. App. 158 (2016) (when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). The Veteran has been afforded pertinent VA examinations in October 2012 (shoulder and arm conditions examination; neck conditions examination), February 2015 (shoulder and arm conditions examination); and March 2018 (shoulder and arm conditions examination; neck conditions examination). Notably, in its January 2018 Decision, the Board: (a) found the October 2012 and February 2015 VA examinations to be inadequate because the findings were inconsistent with the holding in Correia; and (b) remanded for further medical development. Correia, supra. Upon remand, the AOJ obtained the March 2018 examinations, upon which the Board, in part, based its July 2019 Decision. The Court’s September 2020 JMPR found that the July 2019 Board Decision erred by failing to account for the Veteran’s inability to complete repetitive use testing of the right shoulder and cervical spine due to pain during the March 2018 VA examination (although the Court listed a “March 2015” VA examination, the Board notes that the inability to complete repetitive use testing was documented in the March 2018, not 2015, VA examination). Further, the Court found that the March 2018 examiner, despite documenting that the Veteran was unable to perform repetitive use testing of the right shoulder and cervical spine due to pain, failed to provide any quantitative assessments of the resulting loss of motion in degrees. Crucially, as the Court highlighted in its September 2020 JMPR, the March 2018 VA examiner, despite documenting that the Veteran was unable to perform repetitive use testing of the right shoulder and cervical spine due to pain, failed to provide any quantitative assessments of the resulting loss of motion in degrees. Further, despite the examiner noting that it was “not feasible” to give degrees of additional range of motion loss due to pain on use or during flare-ups without resorting to mere speculation, the examiner failed to adequately elicit and document information regarding the severity, frequency, and duration of the functional loss. Regarding the neck condition, the examiner documented chronic neck pain, rated 10 during a flare-up (described as sharp pain, sometimes dull, pulsating in the upper back), that causes difficulty getting up out of bed, sharp pain sometimes, and numbness sometimes; although the examiner documented information regarding the severity of the functional loss, the examiner failed to document information regarding the frequency and duration of the functional loss. Regarding the right shoulder condition, the examiner documented chronic right shoulder pain, rated 10, that would cause difficulty with everything (driving, making the bed, trying to cook, planting in the yard) if the Veteran did not get the “shots” (trigger point injections); although the examiner documented information regarding the severity of the functional loss, the examiner failed to document information regarding the frequency and duration of the functional loss. As such, because the Court has emphasized that the Veteran’s range of motion loss due to pain must be accounted for in the rating and because the current medical evidence of record is insufficient to decide the claim, remand is warranted for further medical development consistent with the holdings in DeLuca, Mitchell, Correia, and Sharp. DeLuca, supra; Mitchell, supra; Correia, supra; Sharp, supra. 2. Entitlement to an increased rating above 20 percent since May 23, 2016, for right shoulder (major) DJD This issue is remanded for the same reasons discussed above. 3. Entitlement to an initial increased rating above 10 percent prior to June 6, 2017, for cervical spine DDD This issue is remanded for the same reasons discussed above. 4. Entitlement to an increased rating above 20 percent since June 6, 2017, for cervical spine DDD This issue is remanded for the same reasons discussed above. The matters are REMANDED for the following action: 1. Forward the claims file to a VA examiner to address the following. Considering the Veteran’s inability to complete repetitive use testing of the right shoulder and cervical spine due to pain during the March 2018 VA examination, provide, if possible, quantitative assessments of the resulting loss of motion in degrees. Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is necessary to render the requested opinions. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.