Citation Nr: 21004895 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-06 414 DATE: January 28, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for right clavicle, status-post surgery (hereafter right clavicle disability) based on limitation of motion is remanded. Entitlement to an initial separate rating in excess of 10 percent for a right clavicle disability based on clavicle impairment remanded. Entitlement to an initial rating in excess of 20 percent for left shoulder status post recurrent dislocation, status post surgery (hereafter left shoulder disability) based on limitation of motion is remanded. Entitlement to a separate initial rating in excess of 10 percent for a left shoulder disability based on scapula impairment is remanded. Entitlement to a separate initial compensable rating for a right shoulder scar is remanded. Entitlement to a separate initial compensable rating for four left shoulder scars is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1998 to August 2002, from January 2003 to September 2003, from October 2003 to April 2004, and from August 2004 to July 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In a July 2019 decision, the Board denied the Veteran’s appeal for entitlement to a rating in excess of 10 percent for a right clavicle condition; a rating in excess of 10 percent for a left shoulder condition; a rating in excess of 30 percent for limitation of motion in the right shoulder; a rating in excess of 20 percent for limitation of motion in the left shoulder; a compensable rating for a right shoulder scar; and a compensable rating for four left shoulder scars. The Board also found that referral for extraschedular consideration was not warranted for any of his shoulder or scar disabilities, as his reported symptomatology was not exceptional or unusual and already contemplated in the applicable rating criteria. The Veteran timely appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, pursuant to a Joint Motion for Remand (JMR) submitted by the parties, the Court vacated and remanded the Board decision concerning all issues outlined above. Notably, the Court did not take issue with the Board’s prior finding that extraschedular consideration for his bilateral shoulder and scar disabilities was not warranted. Thus, the Board will not discuss this theory of entitlement further. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (“Court will [not] review Board decisions in a piecemeal fashion”); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff’d, 972 F.2d 331 (Fed. Cir. 1992) (“[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court”). The Veteran was afforded VA shoulder and arm examinations in July 2010 and July 2013. However, the parties to the JMR determined the Board erred in not addressing the Veteran’s argument regarding the inadequacy of the July 2013 examination. The Board finds that this examination, as well as the prior July 2010 examination, are insufficient in light of recent decisions in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. Additionally, in Sharp, the Court affirmed that in order for an examination to comply with 38 C.F.R. § 4.40, the examiner must express an opinion regarding functional impairment and the examiner’s determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Further, the Court in Sharp notes that an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has “considered all procurable and assembled data” and offered a basis for this conclusion, and it must be apparent that the inability to provide an opinion without speculation reflects “the limitation of knowledge in the medical community at large,” as opposed to a limitation of the individual examiner (lack of expertise, insufficient information, or unprocured testing). Id. Thus, on remand a current VA examination that complies with Correia and also adequately address functional loss is warranted. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his right clavicle and bilateral shoulder disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner is asked to address the following: (a) The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in nonweight-bearing. (b) Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s right clavicle and left shoulder disabilities, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran”, what extent, if any, flare-ups affect functional impairment. The examiner must include a full rationale and discussion of any specific facts that cannot be determined if unable to opine without speculation. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.