Citation Nr: 21071576
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 13-00 135A
DATE: November 30, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for degenerative joint disease of the left shoulder is remanded.

Entitlement to a rating in excess of 10 percent for a status/post left ankle fracture is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1980 to January 1984.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  In March 2016, the Veteran testified at a Board hearing.  A transcript of that hearing has been associated with the claims file.  

In July 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the portion of a March 2019 Board decision denying a disability rating higher than 20 percent for DJD of the left shoulder and higher than 10 percent for a status/post left ankle fracture and remanded the case for action consistent with the July 2020 Joint Motion for Partial Remand (JMPR).  

In January 2021 and September 2021, the Board remanded the matters for additional development.  

1. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the left shoulder is remanded.

2. Entitlement to a rating in excess of ten percent for a status/post left ankle fracture is remanded.

The January 2021 remand directed that the RO schedule the Veteran for examinations to determine the severity of his service-connected degenerative joint disease of the left shoulder and status/post left ankle fracture.  The examiner was to provide an estimate of the additional impairment, for each disability, due to flare ups based on the other evidence of record and the Veteran's statements if it was not possible to provide a specific measurement based on direct observation.  If it was not possible to provide a specific measurement without speculation, the examiner was to state whether the need to speculate was 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).  

Subsequently, an August 2021 VA examiner reported in both the ankle and shoulder disability benefits questionnaires that the Veteran did not report flare-ups and neither did they provide an estimate of any additional impairment from flare-ups.  While the Veteran may not have reported flare-ups at the time of the August 2021 examinations, he did report flare ups during his October 2016 VA examinations.  Remand is warranted to obtain an addendum opinion that provides an estimate of additional impairment, for each disability, due to flare ups, in order to achieve substantial compliance with the earlier remand.  See Stegall v. West, 11 Vet. App. 268 (1998).

The matters are REMANDED for the following actions:

1. Obtain an addendum opinion from a qualified clinician.  Whether an additional examination is needed is left to the discretion of the clinician.  

The clinician should provide an estimate, if at all possible, for both the left shoulder and left ankle, of the additional impairment due to flare-ups based on the evidence of record, including the October 2016 VA examinations.  If it is not possible to provide specific measurements without speculation, 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).  

2. Readjudicate the claims.

 

 

L. CHU

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Vemulapalli, 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.