Citation Nr: 21069371 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-45 067 DATE: November 18, 2021 REMANDED The issue of entitlement to service connection for a left shoulder disability, to include, degenerative joint disease, impingement syndrome, rotator cuff tear, and bursitis, is remanded The issue of entitlement to an initial rating greater than 10 percent for right knee medial and lateral instability, secondary to service-connected post-operative chondromalacia of the right knee, is remanded. The issue of entitlement to a rating greater than 10 percent for service-connected post-operative chondromalacia, right knee, is remanded. The issue of entitlement to a rating greater than 30 percent for service-connected right shoulder impingement syndrome, rotator cuff injury with bursitis, and degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1991 to September 1997. This appeal to the Board of Veterans' Appeals (Board) arose from April 2015, December 2015, and July 2020 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The instant matters were then previously before the Board in December 2020, at which time the Board, inter alia, denied service connection for a left shoulder disability and increased ratings for the Veteran's service-connected right shoulder and right knee disabilities. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in September 2021, the Veteran's then attorney and VA's General Counsel filed a Joint Motion for Partial Remand (Joint Motion) with the Court to vacate the Board's December 2020 decision insofar as it had denied service connection for a left shoulder disability and increased ratings for the Veteran's service-connected right shoulder and right knee disabilities; subsequently, the Court granted the motion that same month and the matters were remanded to the Board for further proceedings consistent with the Joint Motion. In light of points raised in the Joint Motion, and upon further review of the record, the Board finds it necessary to remand the matters currently before it for further development by the agency of original jurisdiction (AOJ). Specifically, in their Joint Motion, the parties agreed that the Board erred in relying on the report of September 2019 VA knee and shoulder examinations, noting that the findings contained therein did not comply with the requirements of Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) and Correia v. McDonald, 28 Vet. App. 158, 168 (2016). A review of the September 2019 examination reports shows that the examiner noted right knee pain with flexion and right shoulder pain with flexion, abduction, and internal rotation. However, the examiner made no specific finding as to the degree of range-of-motion lost due to pain on use; thus, it is unclear from the examination at what point the Veteran experienced painful motion. In Mitchell, supra, the Court found similar examination findings to be inadequate because the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." The Court stressed that such a finding is important in providing a "clear picture of the nature of the veteran's disability and the extent to which pain is disabling," so as to "allow the Board to ensure that the disabling effects of pain are properly considered when evaluating any functional loss due to pain that is attributable to the veteran's disability." Id. The Board also notes that in Correia, supra, the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. Specifically, it was noted that 38 C.F.R. § § 4.59 provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." In this case, as discussed in the parties' Joint Motion, the September 2019 examination reports contains unclear and confusing findings regarding the range-of-motion tests conducted pursuant to Correia, supra. Regarding the Veteran's claim for service connection for a left shoulder disability, in the Joint Motion, the parties agreed that the September 2019 VA examiner's nexus opinion was inadequate to rely upon for adjudication purposes because the examiner failed to address the entirety of the Veteran's relevant medical history, to specifically include a May 1992 service treatment record noting that the Veteran injured her left shoulder and was experiencing tenderness. Given the above noted deficiencies and in order to comply with the parties' Joint Motion, the Board finds it necessary to remand the claims for service connection for a left shoulder disability and for increased ratings for the service-connected right shoulder and right knee disabilities for additional development, to include obtaining a new VA examination as set forth below. 38 U.S.C. § 5103A; 38 C.F.R. § § 3.159; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA knee examination to determine the current severity of her service-connected right knee disabilities. The contents of the entire, electronic claims file, to include a complete copy of this remand, must be made available to the designated clinician, and the examination report should reflect full consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results furnished to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. For each knee, the examiner must conduct range of motion testing (for comparison purposes), expressed in degrees. Specifically, the examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state, and explain why. In conducting range of motion testing, the examiner must render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner must indicate the point at which motion limiting pain begins. The examiner is remined that to simply indicate pain with flexion and/or extension is insufficient; the examiner must state at what point during flexion and/or extension the onset of pain begins. The examiner must also inquire as to periods of flare-up and additional functional loss due to repetitive use over time and note the frequency and duration of any such incidents. If the examination is not conducted during a flare up, based on examination results and the Veteran's documented history and assertions the examiner must estimate the effect of any functional losses during flare-ups or repetitive use over time, including due to pain, incoordination, lack of endurance, weakness, fatigability, by equating the disability experienced due to all such losses to loss of motion (stated in degrees) beyond what is shown clinically. For the right knee, the examiner should also evaluate the severity of the medial and lateral instability in the right knee. Specifically, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. Further, as 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 was amended during the pendency of the appeal, the examiner must provide all findings necessary to evaluate the Veteran's service-connected medial and lateral instability in the right knee under the amended criteria, to include identifying whether there is patellar instability; whether the Veteran requires a prescription from a medical provider for a brace, cane, or walker; and whether the Veteran has an unrepaired or failed repair of complete ligament tear causing persistent instability, or a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability. All examination findings/testing results, along with a complete, clearly stated rationale for the conclusions reached, must be provided. 2. Arrange for the Veteran to undergo a VA shoulder examination to determine the current severity of her service-connected right shoulder disability and etiology of any diagnosed left shoulder disability. The contents of the entire, electronic claims file, to include a complete copy of this remand, must be made available to the designated clinician, and the examination report should reflect full consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results furnished to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should provide a complete assessment of the severity of the Veteran's right shoulder disability. The examiner should conduct range of motion testing of the right shoulder (expressed in degrees) on both active motion and passive motion, and in both weight-bearing and nonweight-bearing (as appropriate). The same range of motion testing should be accomplished for the left shoulder (for comparison purposes). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state, and explain why. The examiner should render specific findings as to whether, during such testing, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left shoulder. If pain on motion is observed, the examiner must indicate the point at which pain begins. The examiner is remined that to simply indicate pain with flexion, abduction, and/or rotation is insufficient; the examiner must state at what point during flexion, abduction, and/or rotation the onset of pain begins. The examiner must also inquire as to periods of flare-up and additional functional loss due to repetitive use over time and note the frequency and duration of any such incidents. If the examination is not conducted during a flare up, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right shoulder due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Further, because 38 C.F.R. § 4.71a, DC 5201, was amended during the pendency of the appeal, the VA examiner should provide all findings necessary to evaluate the Veteran's disability under the amended criteria, to include whether flexion and/or abduction limited to 25° from the side, to 45 degrees, and/or to 90 degrees. Regarding the left shoulder, the examiner should identify all diagnosed disabilities of the left shoulder. The examiner should also elicit from the Veteran a description of the in-service injury, event, or disease to which she attributes her left shoulder disability. Then, based upon a review of the record and examination of the Veteran, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent probability of more) an in-service injury, event, or disease. In doing so, the examiner should consider the May 1992 service treatment record noting that the Veteran injured her left shoulder and was experiencing tenderness. Notably, the absence of documented evidence of a specific diagnosed disability in or shortly after service should not, alone, serve as the sole basis for any negative opinion. In this regard, the examiner is advised that the Veteran is competent to report hr symptoms and history, and her assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.