Citation Nr: 21071962 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-62 345 DATE: December 1, 2021 REMANDED Entitlement to an increased rating in excess of 30 percent prior to April 11, 2016 and in excess of 40 percent thereafter for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U. S. Navy from July 1991 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) by a June 2021 order of the United States Court of Appeals for Veterans Claims (CAVC) that granted a Joint Motion for Partial Remand (JMPR), vacating and remanding part of the October 2020 Board's decision, which denied entitlement to a rating in excess of 30 percent prior to April 11, 2016 and in excess of 40 percent thereafter for a right shoulder disability. Previously, the Veteran filed an increased rating claim for a rating in excess of 30 percent for the service-connected right shoulder disability in March 2016, which was denied in an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the matter to the Board and requested a Board hearing. Hence, in July 2019, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ), who is retired and no longer employed by the Board. A transcript of this hearing is associated with the Veteran's claims file. The law requires that in a legacy appeal the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 C.F.R. § 20.604. Therefore, in a June 2021 correspondence from the Board, the Veteran was notified that the VLJ who presided over the July 2019 hearing was no longer employed by the Board, and he could request another Board hearing. In a July 2021 response, the Veteran stated that he would want to appear at another Board hearing. Therefore, the Veteran testified at a September 2021 Board hearing before the undersigned VLJ. A transcript of this hearing is associated with the claims file. Entitlement to an increased rating in excess of 30 percent prior to April 11, 2016 and in excess of 40 percent thereafter for a right shoulder disability is remanded. The Veteran asserts that he is entitled to a higher rating for his service-connected right shoulder disability. In the June 2021 JMPR, the parties (the Veteran and the Secretary of VA) agreed that in its October 2020 decision, the Board relied on inadequate January 2012, December 2013, and August 2015 VA medical opinions because the VA examiners did not provide estimated range of motion (ROM) during flare-ups or explain why such estimates could not be rendered. The parties also agreed that during the December 2013, April 2016, and January 2019 VA examinations, the examiners noted history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint with frequent episodes. Therefore, the Board should consider whether a rating under diagnostic code 5202 pertaining to dislocation of scapulohumeral joint is warranted. At the September 2021 Board hearing, the Veteran testified that his condition has become worse, and he is dislocating his shoulder more often now than before. Hence, the Board finds that a remand is warranted to obtain a new VA examination to ascertain the current severity of the service-connected right shoulder disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007) (noting that a new examination is appropriate when there is an assertion or indication of an increase in severity since the last examination). A remand is also warranted to obtain an opinion regarding estimated range of motion during flare-ups, and whether the Veteran has recurrent dislocation (subluxation) of the scapulohumeral joint with frequent episodes; if so, whether there is guarding of all arm movements or only at shoulder level. The Board notes that the VA treatment records associated with the claims file are from September 2020 and prior. Therefore, on remand, the RO should obtain up to date VA treatment records. The matter is REMANDED for the following action: 1. Obtain outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to evaluate his right shoulder disability. Then, forward the claims file, including a copy of CAVC and Board remands to the examiner for an opinion. 3. After reviewing the claims file, copy of this remand and the June 2021 JMPR, the examiner should address the following: (a) The examiner should test the Veteran's right shoulder for range of motion (ROM) limitation and pain during active motion, passive motion, and with weight-bearing and non-weight-bearing. If such testing cannot be accomplished, an explanation must be provided. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the functional loss and additional loss of ROM during flare-ups or when used repeatedly over a period of time. (b) The examiner should provide retrospective medical opinion, as best as can be ascertained from the Veteran's self-report, as well as from clinical records and other evidence of record, estimating any additional degrees of limitation of ROM caused by functional loss during flare-ups or after repeated use of right shoulder from the date of the increased rating claim March 23, 2016 to the present. In doing so, the examiner must review the prior VA examination reports (from April 2016, August 2016, November 2016, and January 2019), and based on the information therein, provide the requested findings for each examination undertaken during the pendency of the appeal. (c) The examiner should specifically comment on whether the Veteran's right shoulder disability has manifested by episodes of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint with frequent episodes; if so, whether there is guarding of all arm movements or only at shoulder level at any time during the appellate period since March 2016. The examiner should indicate the basis for any such finding. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 4. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.