Citation Nr: 21065214 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-02 724 DATE: October 25, 2021 REMANDED Entitlement to an increased evaluation for a disability of the right wrist, currently rated as 20 percent disabling, is remanded. Entitlement to an increased evaluation for a disability of the right shoulder, currently rated as 30 percent disabling before December 9, 2020 and as 40 percent disabling since then, is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disorders (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to June 1975 and from September 1982 to October 1985. This case comes to the Board from a decision issued by the Agency of Original Jurisdiction (AOJ) in July 2012, which denied requests for a rating higher than 30 percent for a service-connected right shoulder disability and for a rating higher than 20 percent for a right wrist disability. Since then, the AOJ increased the right shoulder rating from 30 percent to 40 percent, effective December 9, 2020. The Veteran has not, however, expressed satisfaction with the amount of this increase, which means that his right shoulder rating claim remains on this appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). While the increased rating appeals have been pending, the record raised the issue of whether the Veteran's service-connected disabilities prevent him from working, making the issue of TDIU part of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 448-49 (2009). In April 2016, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of that hearing is of record. Because the presiding VLJ is now unable to decide this appeal, the Veteran was advised in writing of his right to a second hearing before a different VLJ. The letter explained to the Veteran that, if he wanted to testify at a second hearing, he should indicate his desire to do so within 30 days after receiving the letter. Because more than 30 days have passed and the Veteran has not invoked his right to proceed with a second hearing, the Board finds that he has waived his right to a second hearing. Under these circumstances, this appeal can now be considered by any VLJ. The Board remanded these issues for further development in June 2018 and, most recently, in November 2020. Wrist and Shoulder Increased Rating Claims In its most recent remand orders, the Board instructed the AOJ to arrange new examinations of both the right arm and right shoulder. The AOJ was further instructed to obtain reports from the examiner which satisfy the requirements for musculoskeletal examinations described in 38 C.F.R. §§ 4.40, 4.59, Correia v. McDonald, 28 Vet. App. 158, 170 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The AOJ obtained the requested reports for both the wrist and shoulder in December 2020. For both the wrist and shoulder, the December 2020 examiner complied with Sharp by providing a summary of the Veteran's description of his wrist and shoulder symptoms after repeated use over time and at times when his symptoms are at their worst ("flare-ups"). The examiner also appropriately provided estimates of range of motion in both relevant joints after repeated use over time and during flare-ups. The December 2020 examiner indicated whether or not pain was present during each of the testing methods required by 38 C.F.R. § 4.59. For both the right wrist and the right shoulder, the examiner also provided separate results indicating the range of motion, in degrees, during both active and passive motion. The examiner did not, unfortunately, provide the results, in degrees, of range of motion testing during weightbearing and non-weightbearing. The Board has considered the possibility that the initial active motion test results, for both wrist and shoulder, might constitute range of motion in non-weightbearing and that the examiner might have decided that it was unnecessary to provide results in weightbearing on the theory that, although both joints can be helpful in lifting objects with the arm and hand, neither the wrist nor the shoulder might be considered weightbearing joints in the sense that, for example, the knees, hips, and ankles are weightbearing joints that is, they do not support the weight of the human body when standing. But such an interpretation would be inconsistent with the details of the December 2020 reports, in which the examiner indicated that, for both the right wrist and the right shoulder, there was pain during weightbearing. The examiner would not have made these notes if she believed that the wrist and shoulder were not weightbearing joints. It is difficult to blame the December 2020 examiner for the omission of separate test results in weightbearing and non-weightbearing because the relevant parts of the Board's November 2020 remand orders might have been drafted with more precision: "In [describing the relevant disability], the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing." The position of the word "pain" in the quoted sentence makes it unclear whether weightbearing and non-weightbearing required separate tests or merely a note to indicate whether or not pain was present. One potential interpretation of the final sentence of 38 C.F.R. § 4.59 "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing . . ." - is that the regulation requires only that the examiner test "for pain" and an examiner can comply by indicating whether or not the Veteran experienced pain during range of motion testing in non-weightbearing. But there are several parts of the Court's opinion in Correia which suggest that it is not enough merely to indicate whether or not pain was present during a test. In the part of the decision which considered whether § 4.59 was ambiguous, the Court explained the role of the regulation in the context of other regulations which apply generally to disabilities of the musculoskeletal system. "In that context, then, we read the final sentence of § 4.59 as explaining the kinds of test results that 'should' be obtained to permit an adjudicator to assess the effect of painful motion range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances." Correia, 28 Vet. App. at 165. It is difficult to see how notes which merely indicate the presence or absence of pain would permit an adjudicator to assess the effect of pain on range of motion. To do so effectively, it would be useful for the adjudicator to have the full results of each range of motion test - i.e., the range of motion, in degrees, of the relevant joint using each of the testing methods identified in the regulation. The Correia opinion continues with analysis of the proper interpretation of § 4.59. This part of the Court's analysis indicates that the regulation should be read together with 38 C.F.R. §§ 4.40 and 4.45. The Court explained that, "[§ 4.40] states that it 'is essential' that an examination on which a disability rating is based 'adequately portray the anatomical damage and the functional loss' that occurs as a result of those elements. Section 4.45 explains that 'the factors of [joint] disability reside in reductions of their normal excursion of movements in different planes.'" Correia, 28 Vet. App. at 169 (internal short form citations and explanatory parenthetical omitted). "Neither of those regulations, however, explains how that information should be obtained, except that § 4.40 refers to 'an examination,' but the Secretary has answered this question in § 4.59." Id. If § 4.59 was intended to accomplish the purposes of § 4.45 one of which is to assess "reductions in [the] normal excursion of movements [of the joint] in different planes" the most reasonable reading of § 4.59 requires the examiner to provide detailed range of motion test results, not merely an indication of whether or not pain was present. The final sentence the Court's regulatory interpretation analysis supports this conclusion: "Consequently, we are left with the inescapable conclusion that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of §4.59." Id. at 169-70. Even if the more limited reading of the regulation is correct i.e., that it is sufficient merely to indicate whether pain is present during each test there is no support in the text of the regulation to support the examiner's apparent interpretation of the November 2020 remand orders that is, to require the recording of separate range of motion test results, in degrees, during active and passive motion while simultaneously requiring only a note to indicate whether pain was present during weightbearing and in non-weightbearing. Unless this is harmless error, a finding that the December 2020 examination reports are adequate would be vulnerable to appeal on the grounds that the Board effectively rewrote 38 C.F.R. § 4.59 or condoned a misinterpretation of the regulation by the examiner. Until very recently, an examiner's failure to comply with 38 C.F.R. §§ 4.40, 4.45, 4.59 and Correia was considered harmless error when, as in the case of both the right shoulder and right wrist ratings, the Veteran has been awarded the highest rating authorized for the relevant joint based on limited motion and the criteria for an even higher rating require ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). But this understanding of the law is inconsistent with the Court's recent decision in Chavis v. McDonough, 34 Vet. App. 1 (decided April 16, 2021). Chavis suggests that the Veteran in this case could potentially be eligible for a rating higher than 40 percent for his right shoulder if weakened movement, excess fatigability, incoordination, and pain on movement during flare-ups cause him to experience the "functional equivalent" of unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side and/or a rating higher than 20 percent for his right wrist if weakened movement, excess fatiguability, etc., cause him to experience the "functional equivalent" of favorable or unfavorable ankylosis of the right wrist. Id. at 19-20; 38 C.F.R. § 4.71a, DCs 5200, 5214. Based on this understanding of 38 C.F.R. §§ 4.40 and 4.45, the Board cannot find that the December 2020 examiner's failure to provide range of motion test results, in degrees, with weightbearing and non-weightbearing was harmless error. Although the Board regrets the need for further delay, it must remand both the right shoulder and right wrist increased rating claims to obtain adequate examination reports. TDIU The appeal of the denial of a TDIU rating is inextricably intertwined with the increased rating claims because, if resolved in his favor, the increased rating claims could potentially affect whether the Veteran is eligible to receive a TDIU rating. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The Board will remand the TDIU appeal pending the adjudication of the intertwined issues. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran's VA treatment since December 2020. 2. Schedule a VA examination to ascertain the current severity of the Veteran's service-connected right shoulder disability. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner who completes the questionnaire should determine the effective range of motion in the Veteran's right shoulder, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of range of motion test results, in degrees, for both active and passive motion, and in weight bearing and nonweight-bearing. If the examiner believes that testing using one or more of these methods is unsafe or impractical, he or she should clearly explain the medical reasons for that conclusion. The examiner's report should also describe objective evidence of painful motion, if any, during each test. It is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. If it is impossible to make any of these findings, please provide an explanation. To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, the examiner should describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the right shoulder during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the description of reduced range of motion during flares or repetitive use. If the examiner indicates that pain does not cause functional loss with respect to the right shoulder, he or she should thoroughly explain the medical reasons for that opinion. During his or her interview with the Veteran, the examiner should ask the Veteran whether (and, if so, how frequently) symptoms of weakened movement, excess fatigability, incoordination, and/or pain on movement have resulted in the functional equivalent of unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side since September 29, 2011. The examiner's report should summarize the Veteran's answer to this question. 3. Schedule a VA examination to ascertain the current severity of the Veteran's service-connected right wrist disability. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner who completes the questionnaire should determine the effective range of motion in the Veteran's right wrist, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of range of motion test results, in degrees, for both active and passive motion, and in weight bearing and nonweight-bearing. If the examiner believes that testing using one or more of these methods is unsafe or impractical, he or she should clearly explain the medical reasons for that conclusion. The examiner's report should also describe objective evidence of painful motion, if any, during each test. It is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. If it is impossible to make any of these findings, please provide an explanation. To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, the examiner should describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the right wrist during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the description of reduced range of motion during flares or repetitive use. If the examiner indicates that pain does not cause functional loss with respect to the right wrist, he or she should thoroughly explain the medical reasons for that opinion. During his or her interview with the Veteran, the examiner should ask the Veteran whether (and, if so, how frequently) symptoms of weakened movement, excess fatigability, incoordination, and/or pain on movement have resulted in the functional equivalent of ankylosis of the right wrist since May 31, 2012. The examiner's report should summarize the Veteran's answer to this question. 4. The AOJ must ensure that the examination reports and opinions requested comply with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 5. The AOJ should review the evidence, including the new information obtained as a result of the efforts described in parts one to four of these instructions, and consider whether any further development is necessary to decide the pending claims for increased ratings for the service-connected right shoulder and right wrist disabilities and/or the claim for TDIU. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.