Citation Nr: 21076079 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-50 591 DATE: December 22, 2021 REMANDED The claim for entitlement to an increased disability rating for service-connected right shoulder fracture clavicle bone with degenerative joint disease, currently rated as 30 percent disabling, is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Army from May 1975 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement in October 2014. The RO issued a statement of the case (soc) in August 2017 and in September 2017 the Veteran filed a VA Form 9 appeal to the Board. The RO issued a new rating decision in March 2018, increasing the Veteran's disability rating to 30 percent effective September 6, 2013. The RO then issued a supplemental statement of the case (SSOC) in March 2018. The Veteran's appeal was certified to the Board in April 2018 on a VA Form 8. The Board notes that the Veteran was previously scheduled for a hearing. However, in statements received in both January 2021 and February 2021, the Veteran indicated in writing that he desired to "withdraw my request for a hearing and let my case be decided on the evidence already presented." As such, this case will proceed without a hearing. This matter is now properly before the Board. As a final matter, the Board recognizes that the Veteran renounced all of his VA benefits in a June 2018 statement. However, the Veteran's representative submitted a statement in the same month rescinding this statement by the Veteran, noting that the Veteran had a poor reaction to a prescribed medication when he drafted this letter. Therefore, the Board views the Veteran's statement to be of no significant value and will continue with the claim on appeal. 1. Right shoulder fracture clavicle bone with degenerative joint disease. The Veteran contends that he is entitled to a disability rating greater than 30 percent for his service-connected right shoulder fracture of the clavicle bone with degenerative joint disease. The Veteran was afforded a VA examination in March 2014. The Veteran reported increasing intermittent pain in his right arm and that his range of motion was poor. The Veteran reported flare ups when he rolled on his shoulder while in bed. The March 2014 examiner measured the Veteran's initial range of motion, and flexion was measured to 80 degrees, abduction to 80 degrees. The March 2014 examiner noted that the Veteran had painful motion at 30 degrees. The examiner found that the Veteran had less movement than normal on both arms and noted weakened movement in both arms. The examiner found that the Veteran had guarding on his right shoulder. The examiner commented that the Veteran's right shoulder disability did have a functional impact and the Veteran should be precluded from overhead work or lifting more than 10 pounds above the shoulders. The Veteran was afforded an additional VA examination in November 2016. The November 2016 examiner measured initial range of motion of the Veteran's right arm. Flexion was measured at 80 degrees; abduction 80 degrees; external rotation 60 degrees; internal rotation 60 degrees. The examiner opined that range of motion itself does not contribute to functional loss. The examiner noted that pain on examination does cause functional loss and that pain was exhibited in range of motion during flexion, abduction, external rotation, and internal rotation. The examiner also assessed the Veteran's pain in terms of range of motion and determined that the Veteran's pain impacts functional limitation: in terms of range of motion pain was observed at flexion to 70 degrees; abduction to 70 degrees; external rotation to 50 degrees; internal rotation to 50 degrees. The examiner also described the Veteran's flare ups in terms of range of motion. Range of motion during flare ups was described as flexion to 65 degrees; abduction to 65 degrees; external rotation to 45 degrees; internal rotation to 45 degrees. The November 2016 examiner also found that an additional contributing factor of the Veteran's disability is less overall movement than normal. The November 2016 examiner noted that there was no ankylosis found upon examination and that the findings were positive for Hawkins's impingement test and positive for empty-can test and that it does not warrant an additional diagnosis as it is most likely the pain from the ac degenerative joint diseased. The Veteran submitted a statement in support of his claim dated January 2015, describing his increased disability. The Veteran stated that he has had an increasing inability to perform certain life functions as a result of the pain in his shoulders. The Veteran claimed that cleaning and doing housework has become increasingly difficult. The Veteran stated that picking up the vacuum cleaner causes a lot of pain his shoulder, so he has to use his left arm. The Veteran indicated that he uses his left arm more frequently because of the increasing pain in his right arm. The Veteran also complained that tasks like maintaining his own hygiene and scrubbing his back are also difficult and painful because of his right arm pain. The Veteran also submitted a statement dated September 2017. The Veteran indicated in that letter that that he has sharp pain in his arm. He indicated he is a lab technologist and that he has responsibilities in the hospital lab to test blood specimens for patients. He indicated that he can't get proper rest because of the pain and ultimately that impacts his ability to work. The Veteran provided a list of documented days in which he was awakened due to shoulder pain and had fatigue at work. The Veteran indicated that he has been using Tramadol as his pain reliever because he is able to function with it during the day, however it has bad side effects. The Veteran emphasized that the ongoing pain is causing problems in his life in many ways. The Board finds that the Veteran is competent to report his pain and the impact it has on his personal life. The Board finds that the Veteran is credible and that his statements are highly probative to the Board's understanding of the Veteran's pain in his right arm. The Board finds that the Veteran's prior VA examinations were competent and credible. However, a more recent examination is required before appellate review may proceed as it appears there may not be a clear picture of the Veteran's overall disability. The Board notes that it has been over five years since the Veteran was last afforded a VA examination. While the passage of time alone does not trigger the need for a new examination, in the present case, the Veteran's representative indicated in a June 2018 statement that the Veteran fell in March 2018 and injured his right shoulder. It was also noted that the Veteran was waiting for surgery to be scheduled. Therefore, the evidence suggests that there has possibly been a material change in the Veteran's service-connected right shoulder disability. The Board is sympathetic and regrets the need to remand, however in order to best assess the Veteran's pain and the Veteran's current range of motion it is necessary to obtain a new examination and updated medical records. This matter is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the Veteran's claims file. Document all attempts to obtain these records. 2. Contact the Veteran and ask him to identify any private treatment he has received in association with his right shoulder disability, to include any surgical records or records of treatment related to the reported fall in 2018. All reasonable attempts should be made to obtain any identified records and associate them with the claims file. If any identified records cannot be obtained, the record should clearly document this fact laying out the attempts made to obtain these records. 3. Schedule the Veteran for a VA examination before an appropriate physician to determine the current severity of his service-connected right shoulder fracture clavicle bone with degenerative joint disease. The examiner must document that the entire claims file and this Remand have been reviewed. Both passive and active range of motion testing is to be performed. The examiner should indicate at what point of motion does the Veteran experience pain. An opinion as to any additional limitation during a time of "flare-ups" should be provided, based both on the objective evidence of record and the Veteran's lay assertions provided during the scheduled examination. Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. 4. Thereafter, re-adjudicate the Veteran's claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.