Citation Nr: 21071201 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 11-13 963 DATE: November 30, 2021 REMANDED Entitlement to a rating in excess of 20 percent for right shoulder tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army National Guard from October 2000 to November 2000. This matter comes before the Board of Veteran's Appeals (Board) on appeal of a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran presented testimony at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In a December 2020 letter, the Veteran was informed that he had the right to request another optional Board hearing by another VLJ who would decide his case. He did not respond to that letter and it was not returned as undeliverable. Consequently, the Board proceeded with adjudication of these issues. As to procedural history, in August 2017, the Board first remanded this matter to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in November 2018. In a subsequent March 2019 decision, the Board denied the Veteran's appeal with regards to the right shoulder tendinitis rating. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacating the March 2019 Board decision, and remanded the case back to the Board for compliance with directives specified in the JMR. Subsequently, in July 2020 and February 2021, the Board respectively remanded this matter for an adequate examination, including for retrospective range of motions (ROMs) for evaluation of the Veteran's right shoulder disability, particularly during the November 2017 examination when the Veteran reported experiencing flareups. The matter has once again been returned to the Board for adjudication. 1. Entitlement to a rating in excess of 20 percent for right shoulder tendonitis is remanded. The Veteran was granted service connection for his right shoulder tendinitis at a disabling rating evaluation of 10 percent in an April 2006 rating decision, which was subsequently increased to 20 percent in August 2008, effective January 18, 2007. The Veteran filed a claim in October 2009 seeking an increased evaluation that was denied by the RO in a May 2010 rating decision, from which the current appeal ensued. In its prior February 2021 remand, the Board requested that the VA examiner provide a retrospective medical opinion concerning the additional degrees of limited motion of the right shoulder experienced by the Veteran during flare-ups, and to specifically comment on the November 2017 Disability Benefits Questionnaire (DBQ) examination. The Board has deemed this necessary because in the JMR, the parties agreed that the November 2017 DBQ contained internal inconsistencies that were not reconciled with an adequate medical explanation. Specifically, during the November 2017 DBQ, the examiner found that there was additional functional loss on range of motion (ROM) after three repetitions, but also reported that the ROMs were greater than the ones reported during the initial ROM. The examiner further stated that "the examination is medically consistent with the Veteran's statement describing functional loss with repetitive use over time." The Parties agreed that these inconsistencies rendered the examination inadequate for rating purposes. Unfortunately, the Board finds that the March 2021 VA examination and the July 2021 addendum opinion provided in response to the Board's February remand directives, are both still inadequate for rating purposes and further action must be taken before this claim can be adjudicated on its merits. The March 2021 VA examination did not provide ROM measurements for repetitive use testing and flareups and it also did not address the Board's specific request for retrospective ROMs of the November 2017 examination, a fact acknowledged by the RO in requesting the subsequent July addendum opinion. Unfortunately, the July 2021 addendum opinion is also inadequate, primarily because the ROMs measurements for flareups that the examiner retrospectively attributed to the November 2017 VA examination, are actually the Veteran's initial ROMs reported during that same examination, and not based on estimates of what the Veteran's ROMs would have been. The examiner explicitly stated that he did not believe the Veteran experienced flareups, for the following reason: "[O]bjective evidence includes: the medical history sections for all 3 DBQ exams in 2017, 2020, and 2021 do not mention a description of flareups; there is mention in the record of the Veteran's chronic right shoulder pain, but the record is silent for any visits related to flareups, evaluation of flareups, diagnosis related to flareups, or treatment of flareups related to the right shoulder; there is no evidence of hospitalization or other acute care for flareups." Besides the evidence of record, the Board in its February 2021 remand directives specifically requested that bases for the requested retrospective ROMs must include information directly elicited from the Veteran, which the July 2021 examiner failed to do. Stegall v. West, 11 Vet. App. 268, 271 (1998). Though the nature of his flareups was not reported during the November 2017 VA examination, the Veteran reported experiencing flareups, and such was noted by the examiner during the examination. What is clear is that the November 2017 examiner indicated that he was unable to describe any additional loss of functionality during any flareups in terms of ROM, which is required, pursuant to the holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Hence, the basis for the request for this retrospective opinion. To this point, the United States Court of Appeal for Veteran's Claims (Court) has recently provided guidance for cases involving a VA examiner's description of additional limitation and functional impairment during a flare-up of symptoms currently and in the past under Sharp. In Cagliero v. Wilkie, No. 19-6895 (November 30, 2020), a non-precedential single-judge memorandum decision issued by the Court, provided that a Sharp-compliant examination (1) describes the increased symptoms during a flare-up and (2) describes the increased limitation of the affected joint (in degrees) during a flare-up. The July 2021 examiner appeared to have completely dismissed the Veteran's lay statements of experiencing flareups, solely because there was no objective documentation of such in the medical reports he reviewed. Consequently, and unfortunately, another remand is necessary to obtain an addendum opinion from a different examiner, for an objective retrospective opinion describing the Veteran's flareups in terms of estimated ROMs during the November 2017 VA examination, and his current ROMs for any additional loss of range of motion during repetitive use and with flare-ups, which the March 2021 examiner also failed to provide. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination with a VA examiner (other than the one who provided the July 2021 addendum report) to evaluate the current severity of his service-connected right shoulder disability, and to obtain a retrospective opinion describing the Veteran's reported flareups in terms of estimated range of motions (ROMs) during the November 2017 VA examination. The complete electronic record, including this Remand, must be made available to, and reviewed by the VA examiner in conjunction with the examination. Following an examination, review of the claims file, and interview with the Veteran, the examiner must provide the following information: a) Fully report the extent of the Veteran's right shoulder disability in accordance with the VA rating criteria and also fully describe the frequency and severity of ALL functional impairment due to incoordination, weakened movement, excess fatigability, pain or flare-ups in terms of additional degrees of limitation of motion. The examiner is advised that the Veteran is considered competent to report limitation during flare-ups. All required range of motion (ROM) measurements (both passive and active, in weight-bearing and nonweight-bearing) must be taken of the right shoulder, to include abduction and forward elevation (flexion). The same measurements must also be taken for the opposite shoulder. The examiner must attempt to provide estimations regarding any additional loss of range of motion during repetitive use and with flare-ups as it pertains to the examination he or she performed. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of any additional impairment based on the other evidence of record and the Veteran's statements. If the examiner is unable to estimate functional loss in terms of degrees after physical examination and eliciting information from the Veteran, he or she must explain why, and may not rely solely on the fact that he or she did not personally observe the Veteran perform range of motion testing on flare-ups or with repetitive use over time. b) The examiner must also retrospectively report functional limitations due to flare-ups and repetitive use in terms of additional degrees of limitation of motion with regard to the November 2017 VA examination. The examiner should specifically describe the severity, frequency, and duration of any flare-ups; name the precipitating and alleviating factors, and estimate, per the Veteran, to what extent, if any, such flare-ups or repetitive use affect functional impairment. The examiner must provide the range of motion in degrees. If the examiner is unable to retrospectively estimate functional loss in terms of degrees after reviewing the November 2017 examination report and directly eliciting information from the Veteran, this should be so stated along with a supporting rationale why such details cannot be feasibly provided. The examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner should ensure compliance that the directives specified in this remand are implemented so as to prevent any further remand action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, Associate 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.