Citation Nr: 21003848 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 13-02 310A DATE: January 25, 2021 REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to an increased rating for right shoulder instability with degenerative joint disease (DJD), currently rated as 20 percent disabling prior to October 16, 2018 and 30 percent disabling thereafter, is remanded. Entitlement to a rating in excess of 20 percent for left shoulder impingement syndrome with DJD is remanded. Entitlement to a rating in excess of 10 percent for left ankle sprain with instability and DJD is remanded. Entitlement to an increased rating for gastroesophageal reflux disease (GERD) with symptoms of sleep disturbance, currently rated as noncompensable prior to August 15, 2018 and 10 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran had active service from May 1989 to April 1996. He also had a period of active duty for training from September 1987 to January 1988. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that you received a letter indicating that you could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, you do not have a pending hearing request. You provided testimony in a hearing with the undersigned Veterans Law Judge (VLJ) in February 2016. A transcript of your testimony is of record. These matters were last before the Board in February 2018, when they were remanded for additional development. While the Veteran initially appealed the issues of entitlement to service connection for bronchitis and sinus problems, those claims were granted in a June 2019 rating decision. Accordingly, those issues have been resolved and are not presently on appeal before the Board. 1. Entitlement to service connection for migraine headaches is remanded. 2. Entitlement to an increased rating for right shoulder instability with DJD, currently rated as 20 percent disabling prior to October 16, 2018 and 30 percent disabling thereafter, is remanded. 3. Entitlement to a rating in excess of 20 percent for left shoulder impingement syndrome with DJD is remanded. 4. Entitlement to a rating in excess of 10 percent for left ankle sprain with instability and DJD is remanded. 5. Entitlement to an increased rating for GERD with symptoms of sleep disturbance, currently rated as noncompensable prior to August 15, 2018 and 10 percent disabling thereafter, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. In pertinent part, the February 2018 remand directed that the Veteran be afforded VA shoulder and ankle examinations. While the Veteran was most recently provided examinations in March 2020 and November 2020, the examination reports are internally inconsistent regarding his range of motion after repeated use and/or flare-ups. Specifically, the examiners indicated that “pain, weakness, fatigability or incoordination significantly limit functional ability” with repeated use over a period of time and/or flare-ups, the range of motion estimates provided for these situations were identical to the Veteran’s initial range of motion measurements. As the examiners indicated that the Veteran was not being examined during a flare-up or immediately after repetitive use over time, these findings suggests there was not any additional limitations in the Veteran’s range of motion. Additionally, while the examination reports indicate that the Veteran had pain with range of motion testing of the bilateral shoulders and left ankle, the examiners did not indicate where the Veteran's pain started or ended. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Considering the above, there has not been substantial compliance further clarification is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The evidence indicates there may be outstanding relevant VA treatment records. Specifically, a VA treatment record from August 7, 2020 indicates that the Veteran was to return for a follow up appointment in December 2020. To date, VA treatment records subsequent to October 16, 2020 have not been associated with the claims file. Additionally, VA record entries from June 18, 2019, September 12, 2019, and September 27, 2019 note that an unidentified non-VA care records and non-VA orthopedic records from October 12, 2018, December 12, 2018, and September 12, 2019 had been scanned into VistA Imaging. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records dated since October 16, 2020 as well as the VistA Imaging records referenced in VA record entries from June 18, 2019, September 12, 2019, and September 27, 2019. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above record development is completed to the extent possible, schedule the Veteran for a VA shoulder examination to determine the current nature and severity of his service-connected right and left shoulder disabilities. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted for the right and left shoulder, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. To the extent possible, the examiner should reconcile the seeming internal inconsistencies in the prior examination reports wherein the examiners stated that pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time but provided range of motion estimates that were identical to the Veteran’s initial range of motion measurements. (c.) If it is not possible to provide a specific measurement, or an 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). 3. After the above record development is completed to the extent possible, schedule the Veteran for a VA ankle examination to determine the current nature and severity of his service-connected left ankle disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted for the left ankle, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. To the extent possible, the examiner should reconcile the seeming internal inconsistencies in the prior examination reports wherein the examiners stated that pain, weakness, fatigability or incoordination and flare-ups would significantly limit functional ability with repeated use over a period of time but provided range of motion estimates that were identical to the Veteran’s initial range of motion measurements. (c.) If it is not possible to provide a specific measurement, or an 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). 4. Thereafter, if the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period should be allowed for response before the case is returned to the Board. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.