Citation Nr: 21069373 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-11 722 DATE: November 18, 2021 REMANDED A rating excess of 20 percent for right shoulder impingement with rotator cuff tear. REASONS FOR REMAND The Veteran served on active duty from October 1981 to May 1991. The case is on appeal from a March 2012 rating decision. In July 2017, the Veteran testified at a Board hearing. In an October 2020 decision, the Board denied the issue on appeal and remanded claims of service connection for right and left upper extremity disorders. Thereafter, in a January 2021 rating decision, the RO granted service connection for right and left upper extremity nerve disabilities effective June 25, 2010. As these claims have been granted in full, they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran appealed the October 2020 Board decision to the United States Court of Appeal for Veterans Claims (Court) and, in July 2021, the parties to this appeal entered into a Joint Motion for Partial Remand (Joint Motion), in which the parties agreed that the Board's denial should be vacated. The Court granted the Joint Motion in an Order issued later in July 2021. A rating excess of 20 percent for right shoulder impingement with rotator cuff tear. The Veteran is seeking a higher rating for her right shoulder disability. In an October 2015 correspondence, she reported experiencing limitation of motion and pain that results in difficulty combing her hair and dressing. During the July 2017 Board hearing, she reported that her symptoms were worsening. The Veteran's VA treatment records include occupational therapy from December 2008. The Veteran reported right shoulder pain 5 out of 10 in severity at the worst. The physician reported right shoulder range of motion limited to 110 degrees and muscle weakness that impairs her work performance. The Veteran was afforded a VA examination in regard to this claim in July 2010. The Veteran reported experiencing constant right shoulder pain, but denied experiencing flareups. The examiner reported right shoulder ranges of motion of flexion to 140 degrees with painful motion at 90 degrees, abduction to 125 degrees with painful motion at 90 degrees, internal rotation to 90 degrees with painful motion at 35 degrees, external rotation to 90 degrees with painful motion at 40 degrees. He denied additional limitation of motion after repetitive motion. The Veteran declined passive range of motion testing due to pain. He found that the disability results in limitations for performing overhead activity and repetitive lifting with her right arm. The Veteran was afforded another VA examination in April 2015. The Veteran reported experiencing increased right shoulder pain, decreased range of motion, weakness, and right arm numbness, tingling, and weakness. She also reported experiencing flareups with activity. The examiner reported that the examination was conducted during a flareup with right shoulder ranges of motion of flexion to 90 degrees, abduction to 80 degrees, and internal and external rotation to 45 degrees each. The examiner denied additional loss of range of motion on 3 repetitions of testing and repetitive use over time. The examiner also reported the presence of pain on palpation and right shoulder muscle strength 4 out of 5. The examiner denied the presence of pain on weight-bearing, ankylosis, muscle atrophy, instability, use of assistive devices, humerus impairment, and clavicle, scapula, and sternoclavicular conditions. The examiner found functional loss caused by pain and weakness resulting in difficulty with overhead reaching, pushing, pulling, lifting, and carrying weight. The Veteran was afforded another examination in September 2016. The Veteran reported experiencing right shoulder pain on palpation and limitation of motion. She also reported experiencing flareups of painful motion. The examiner was unable to perform range of motion testing due to pain. The examiner reported functional impairment of less movement than normal, weakened movement, and interference with sitting and standing. Thereafter, the Veteran was examined again in May 2017. The Veteran reported sharp aching pain, limited motion, and decreased right hand grip strength. She also reported right shoulder pain 7 out of 10 in severity during flareups. The examiner reported that range of motion testing could not be performed and range of motion during flareups could not be offered without speculation because the Veteran was not experiencing a flareup at the time of the examination. The examiner reported pain on palpation, with weight-bearing, and nonweight-bearing. The examiner further reported right shoulder muscle strength 3 out of 5. The examiner denied the presence of pain on weight-bearing, ankylosis, muscle atrophy, instability, use of assistive devices, humerus impairment, and clavicle, scapula, and sternoclavicular conditions. The examiner found functional impairment due to less movement than normal, weakened movement, and interference with laying on the right side and sleeping. Pursuant to the January 2018 Board remand, the Veteran was afforded another examination in March 2018. The Veteran reported that she has sharp pain with overhead movement. The examiner reported right shoulder ranges of motion of flexion to 160 degrees, abduction to 160 degrees, internal rotation to 85 degrees, and external rotation to 90 degrees with pain on examination that does not cause functional loss. The examiner denied additional loss of range of motion on 3 repetitions of testing. The examiner found that range of motion on repetitive use over time and during flareups could not be offered without speculating. The examiner explained that there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner also reported the presence of pain on palpation, on passive range of motion, on weight-bearing, and on nonweight-bearing. The examiner rated her right shoulder muscle strength at 4 out of 5. The examiner denied the presence of ankylosis, muscle atrophy, instability, use of assistive devices, humerus impairment, and clavicle, scapula, and sternoclavicular conditions. The examiner found that the condition results in shoulder pain with overhead lifting. As noted above, in an October 2020 decision, the Board found that a rating in excess of 30 percent is not warranted for the right shoulder disability. However, the July 2021 Joint Motion found that the examinations of record do not comply with the decisions in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Relatedly, the Court found that the April 2018 examination did not comply with the Board's January 2018 remand due to failing to provide findings pursuant to the holdings in Correia and Sharp. The Board finds that that another remand is necessary to obtain another examination in regard to this claim. The claim is are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of the service-connected right shoulder impingement with rotator cuff tear. (a.) State whether there is any objective evidence of pain on active and passive range of motion of the right shoulder in both weight-bearing and non-weight-bearing circumstances; and, if there is pain on motion, identify the specific excursion(s) of motion accompanied by pain (in degrees); the point in range of motion testing when pain begins and ends (in degrees); and the point at which pain begins and ends after repetitive motion, in degrees. If this testing cannot be done, the examiner should clearly explain why this is so. (b.) If there are flare-ups reported and the examination is not conducted during a flare-up, the functional impact of a flare-up in terms of degrees of range of motion should be estimated. (c.) The examiner should estimate the amount in degrees of ranges of motion lost due to flare-ups experienced by the Veteran at the time of the VA examinations conducted in September 2016, May 2017, and March 2018. (Continued on the next page) If the examiner cannot provide some or all of the requested opinions regarding flareups, he or she should explain whether it is due to the limitation of knowledge in the medical community at large. A rationale should be provided for opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jimerfield, David 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.