Citation Nr: 21062321 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 19-22 459A DATE: October 7, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for the service-connected left shoulder impingement syndrome with acromioclavicular arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for the service-connected left knee medial meniscal tear is remanded. Entitlement to a disability rating in excess of 10 percent for the service-connected left elbow olecranon bursitis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1990 to July 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO increased the disability rating for the service-connected connected left shoulder impingement syndrome with acromioclavicular arthritis from 10 percent to 20 percent, effective June 12, 2018, but denied disability ratings in excess of 10 percent for the service-connected left knee medial meniscal tear and left elbow olecranon bursitis. In June 2019, VA received the Veteran's Notice of Disagreement (NOD). In July 2019, the RO issued a Statement of the Case (SOC). In August 2019, VA received the Veteran's VA Form 9 appeal to the Board. In a July 2020 correspondence, the Veteran, through his representative, asserted that he is unemployable due to his service-connected disabilities, including the disabilities on appeal. Accordingly, an inferred claim for a TDIU is reasonably raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a disability rating in excess of 20 percent for the service-connected left shoulder impingement syndrome with acromioclavicular arthritis. 2. Entitlement to a disability rating in excess of 10 percent for the service-connected left knee medial meniscal tear. 3. Entitlement to a disability rating in excess of 10 percent for the service-connected left elbow olecranon bursitis. During the period on appeal, the Veteran received initial VA examinations for his left shoulder, left knee, and left elbow in July 2018. During the examinations, the Veteran reported flare-ups of his left shoulder, left knee, and left elbow. However, the examiner did not provide estimates of additional functional loss due to pain, weakness, fatiguability, or incoordination during flare-ups solely due to inability to observe the Veteran during flare-ups of left shoulder, left knee, and left elbow pain. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Under Sharp, an examiner may not state inability to estimate functional impairment during flare-ups solely due to being unable to observe the Veteran during a flare-up. See id. at 26. As noted above, the July 2018 examiner provided no rationale for inability to estimate additional functional loss during flare-ups other than inability to directly observe the Veteran under those conditions. Given these omissions, the July 2018 examinations for the left shoulder, left knee, and left elbow are incomplete for rating purposes and new examinations are warranted. Furthermore, no VA treatment records have been associated with the claims file since July 2019. Given also that the Veteran had previously received extensive treatment at VA facilities, remand is warranted in order to associated updated VA treatment records with the claims file. 4. Entitlement to a TDIU due to service-connected disabilities. First, the issue of entitlement to a TDIU is inextricably intertwined with the increased rating issues remanded by this decision, and adjudication must be deferred pending additional development of those issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, a July 2020 vocational opinion provided by the Veteran's representative suggests that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits since 2011. However, no SSA records have been associated with the claims file to date. VA has a duty to locate relevant Federal records, including SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363 372-73 (1992). Accordingly, on remand, the RO should attempt to associate any relevant SSA records with the claims file. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records, including records dated after July 2019. 2. Obtain and associate with the claims file any relevant SSA records, including a favorable disability determination and any associated medical records concerning that determination. 3. Send the Veteran a VA Form 21-8940 and request that the Veteran complete and return the form to obtain the Veteran's level of education and work history, in conjunction with an inferred TDIU claim that is reasonably raised by the record. 4. Schedule the Veteran for a VA orthopedic examination to determine the current nature and severity of his service-connected left shoulder impingement syndrome with acromioclavicular arthritis, left knee medial meniscal tear, and left elbow olecranon bursitis. The claims file, including a copy of this Remand, should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. Furthermore, the examiner should identify all left shoulder, left knee, and left elbow pathology found to be present. The examiner should conduct all necessary testing to make this assessment, to include imaging studies and range of motion studies. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion; however, in providing the requested opinion, the clinician should consider the Veteran's reported symptoms, including the progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms are inconsistent with the nature of the service-connected disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? After completing any additional development deemed necessary, readjudicate the claims, including a TDIU claim as part and parcel of the increased rating claims on appeal. If the disposition of any of the claims remains unfavorable, furnish the Veteran and his representative a supplemental statement of the case and afford the applicable time period to respond. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.