Citation Nr: 21000951 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 07-23 652 DATE: January 6, 2021 REMANDED Entitlement to a disability rating higher than 20 percent for right shoulder adhesive capsulitis is remanded. Entitlement to a disability rating higher than 20 percent for left shoulder adhesive capsulitis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to August 1968. This case initially came to the Board from a July 2006 decision of the Agency of Original Jurisdiction (AOJ). In its decision, the AOJ granted service connection for adhesive capsulitis of both shoulders and, for each shoulder, assigned an initial noncompensable (zero percent) disability rating, effective December 2, 2005. The Veteran timely appealed the adequacy of these ratings. The Veteran testified before the undersigned at a videoconference hearing in September 2011. A transcript of that hearing is of record. For many years the shoulder rating issues were part of the same appeal as several other claims, including issues of whether he should receive higher ratings for his service-connected radiculopathy of the lower extremities. Although the peripheral neuropathy rating issues were the subject of two successful appeals of unfavorable Board decision to the United States Court of Appeals for Veterans’ Claims (Court), the Board has never issued a final decision on the shoulder claims, which, accordingly, have never been addressed by the Court. Except for the shoulder rating issues listed above, the Board resolved most of these issues in a decision and remand issued in September 2017. In the remand portion of that decision, the Board returned the shoulder issues to the AOJ for new examinations. In March 2019, the AOJ increased that ratings assigned to the service-connected right and left shoulder disabilities from zero percent to 20 percent, with both increases effective December 2, 2005. Because the Veteran has not expressed satisfaction with the amount of these increases, both of his shoulder claims remain on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In September 2020, the Veteran submitted a letter indicating an intention to withdraw the remaining issues in this appeal. But the Board will not dismiss the appeal because, in November 2020, the Veteran’s representative submitting a brief indicating that, “After speaking with the Veteran, he does not want to withdraw his appeal and this argument is submitted in support of his substantive appeal.” Although the Board regrets the need for further delay, it is necessary to remand this case for a new examination. The AOJ assigned the increased 20 percent ratings based on a June 2018 examination report. In the September 2020 written brief, the Veteran’s representative claimed that the Veteran had told him that the ranges of motion in both shoulders are now more restricted than they were at the time of the June 2018 examination. When the evidence indicates that a service-connected disability is worse than when originally rated, VA must provide a new examination. See Olson v. Principi, 3 Vet. App. 480, 482 (1992). A new examination is also necessary because the June 2018 report failed to comply with 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016). In part 16 of the June 2018 report (“Remarks”), the examiner indicated whether or not pain was present during the testing required by Correia. Unfortunately, and contrary to the Board’s September 2017 remand orders, the examiner failed to record separate sets of range of motion test results for each of the testing methods required by 38 C.F.R. § 4.59. The post-remand examiner should prepare a new report which corrects this weakness. The matters are REMANDED for the following action: 1. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected adhesive capsulitis of the shoulders. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disabilities should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's feet in a written report which complies with 38 C.F.R. § 4.59 BY RECORDING SEPARATE SETS OF RANGE OF MOTION TEST RESULTS DURING BOTH ACTIVE AND PASSIVE MOTION, AND IN WEIGHT BEARING AND NONWEIGHT-BEARING. In recording range of motion test results concerning the shoulders, the examiner must identify the point, in degrees, when the veteran begins to experience pain. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, the examiner should describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the shoulders during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. If the examiner indicates that pain does not cause functional loss with respect to the shoulders, he or she should thoroughly explain the medical reasons for that opinion. 2. The AOJ must ensure that the examination reports requested above comply with the directives of this DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.