Citation Nr: 21002249 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 09-19 245 DATE: January 13, 2021 REMANDED Entitlement to a rating in excess of 20 percent for residuals of fractured right clavicle prior to July 27, 2017, and a rating in excess of 30 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from January 1961 to January 1965. In August 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. A November 2017 Board decision denied a rating in excess of 20 percent for residuals of fractured right clavicle prior to July 27, 2017 and granted and increased 30 percent rating thereafter. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In November 2018, the Court issued an Order that vacated the Board’s November 2017 decision and remanded the matter on appeal for adjudication consistent with the instructions outlined in the November 2018 Joint Motion for Remand by the parties. In May 2019, the Board remanded the appeal for further development in accordance with the Court Order. The appeal was remanded again in September 2020. Regrettably, additional development is still necessary. Of note, in a November 2020 rating decision, the RO proposed to reduce the Veteran’s rating for residuals of a right clavicle fracture, the issue considered on appeal by the Board. As the Board currently has jurisdiction over this appeal, the RO should discontinue its consideration of this matter. Entitlement to a rating in excess of 20 percent for residuals of fractured right clavicle prior to July 27, 2017, and a rating in excess of 30 percent, thereafter, is remanded. In its most recent, September 2020, remand, the Board requested that the Veteran be afforded a new VA examination in order to reconcile findings of flare-ups in March 2007, September 2008, October 2013, July 2015, and July 2017 VA examinations, but not in a December 2019 VA examination. The Board explained further, as described in the Joint Motion for Remand, that multiple examinations included incomplete findings as to the limitations caused by the Veteran’s reported flareups. Thus, the Board asked the examiner, as was possible, to review the claims file and estimate the limitations of range of motion, in terms of loss of degrees of movement, flareups may have caused at the time of his October 2013, July 2015 and July 2017 VA examinations. The Board was provided with a new VA examination in November 2020, however, regrettably, the examination is inadequate. Initially, the examiner provided no estimation as to prior limitations of loss of degrees of movement caused by flare-ups during the Veteran’s October 2013, July 2015 and July 2017 VA examinations, as requested by the Board, and provided no reason for the failure to do so. Further, the examiner stated that there was no progression of the Veteran’s service-connected clavicle condition, that the Veteran’s clavicle condition was unrelated to a right shoulder condition, and that “the old healed clavicle injury from the 1960’s probably did not cause the shoulder condition.” Significantly the Veteran’s July 2017 and December 2019 VA examiners specifically associated the Veteran’s shoulder impairment with his service-connected clavicle condition. The December 2019 VA examiner specifically changed the Veteran’s diagnosis to left shoulder bursitis, degenerative joint disease, slap tear and rotator cuff tear, stating that the Veteran’s new diagnosis was a progression of his previous diagnosis. The examiner explained that the Veteran’s bursitis of left shoulder is due to compensation, and that the Veteran’s other diagnosis of the right shoulder are noted in MRI from 2015 and a result of the surgery and residual of the fractured clavicle. The Veteran must be scheduled for a new VA examination by an examiner other than the November 2020 examiner. The examiner is asked to estimate prior limitations of loss of degrees of movement caused by flare-ups during the Veteran’s October 2013, July 2015 and July 2017 VA examinations. Further, the examiner is to be informed that the Veteran’s aforementioned right shoulder impairments are to be presumed related to the Veteran’s clavicle condition considered on appeal unless compelling evidence shows otherwise in which case the examiner must provide a thorough rationale, and cite medical principles for so finding. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to assess the severity of his residuals of fractured right clavicle. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's residuals of fractured right clavicle under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flareups, and the degree of functional loss during flare-ups and after repetitive use over time in terms of degrees of motion loss. If testing is not performed during a flareup or repeated use over time, the examiner must attempt to elicit information from other relevant sources, to include the Veteran’s lay statements. As is possible, the examiner is asked to review the claims file and estimate the limitations of range of motion, in terms of loss of degrees of movement, flareups may have caused at the time of his October 2013, July 2015 and July 2017 VA examinations, if such cannot be determined the examiner must state whether such 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). (Continued on the next page)   To the extent possible, the examiner should identify any symptoms and functional impairments due to residuals of fractured right clavicle bone and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or opinion regarding flare-ups, symptoms, or functional impairment 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). 2. Then readjudicate the claim remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.