Citation Nr: 21002116 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-24 475 DATE: January 12, 2021 REMANDED Entitlement to a rating in excess of 30 percent for a service-connected left shoulder disability is remanded. REASONS FOR REMAND The Veteran had active service from November 1970 to September 1972. The Veteran testified before the undersigned Veterans Law Judge in a June 2017 video conference Board hearing. A transcript of that hearing is included in the Veteran’s claims file. 1. Entitlement to a Rating in Excess of 30 Percent for a Service-Connected Left Shoulder Disability The Veteran is seeking a rating in excess of 30 percent for his service-connected left shoulder disability. The Board remanded the Veteran’s claim to afford him a new VA examination in September 2019, concluding that the an August 2017 VA examination was inadequate. In its remand, the Board discussed Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), where the U.S. Court of Appeals for Veterans Claims (the Court) addressed the adequacy of “mere speculation” opinions. The Court explained that case law and Department of Veterans Affairs (VA) guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering an opinion compliant with the Court’s opinion in DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, the Court observed that is not expected that such observation will usually occur, and VA examiners should therefore offer opinions based on estimates derived from information procured from all relevant sources, including statements from veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation—whether based on lack of expertise, insufficient information, or unprocured testing—of the individual examiner. The Veteran was provided a new VA examination in December 2019. This examination is also inadequate. According to the examination report, the Veteran described flare-ups as pain in excess of 8-out-of-10 if he reaches or extends his left arm out too far. The pain lasts for a day or two. The examiner noted extra pain during flare-ups and estimated that his range of motion during flare-ups as from 0 degrees to 60 degrees on flexion, from 0 degrees to 80 degrees on abduction, from 0 degrees to 40 degrees on external rotation, and from 0 degrees to 40 degrees on internal rotation. These are the same ranges of motions observed during initial range of motion testing. This is consistent with the Veteran’s statement in the examination that flare-ups result in more pain. The record also shows that the Veteran’s flare-ups involve a feeling that his left shoulder was close to dislocating. Unfortunately, the examiner responsible for the December 2019 VA examination did not identify the points within the Veteran’s range of motion that can spark flare-ups. The Veteran noted that motion past certain points resulted in additional pain; however, those points in his ranges of motion were not noted during the examination. The fact that the Veteran can push through the pain to reach his threshold range of motion must be considered. A determination needs to be made as to when pain associated with range of motion and lifting causes limitation of function. Accordingly, a new VA examination that identifies the limits or points within the Veteran’s range of motion that he must refrain from reaching past to protect against flare-ups would be helpful in assigning a rating for his service-connected left shoulder disability. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should elicit from the Veteran the point or points at which movement of his left arm initiates flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.