Citation Nr: 21076164 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-24 950 DATE: December 22, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for residuals of a right ankle surgery prior to November 21, 2014, is remanded. Entitlement to an evaluation in excess of 20 percent for residuals of a right ankle surgery on or after January 1, 2015, to include an extension of the assignment of a temporary total evaluation beyond January 1, 2015, under 38 C.F.R. § 4.30, is remanded. Entitlement to an evaluation in excess of 20 percent for residuals of a left radial nerve injury is remanded. Entitlement to an evaluation in excess of 20 percent for residuals of left shoulder separation with residual muscle weakness is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012, April 2014, and February 2015 rating decision. In August 2016, the Board remanded the case to afford the Veteran a hearing. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. In June 2018, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. In an August 2020 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation assigned for the service-connected left shoulder disability to 20 percent effective from January 22, 2014. Nevertheless, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). Upon review, the Board finds that a remand is needed prior to adjudication of the issues. Regarding the issues of entitlement to increased evaluations for the service-connected right ankle and left shoulder disabilities, the Veteran was afforded VA examinations in May 2019. However, the examiner did not comment on the range of motion measurements and functional impact of flare-ups for the other VA examinations conducted during the appeal period, as requested by the Board in June 2018. Stegall v. West, 11 Vet. App. 268, 271 (1998). Rather, the examiner stated that it was unethical to comment on another examiner's findings or reports, including any error or diagnosis. Notably, however, the Board did not ask the examiner to question a prior finding. Instead, the examiner was asked to provide a retrospective medical opinion as to whether those findings could be estimated based on the reports provided. In addition, the May 2019 examiner stated that "without defined standards by which weight-bearing is to be measured, a legally acceptable, comparable measurement cannot be provided in a manner that would allow equitable evaluations for all veterans." The examiner also commented that passive range of motion testing was not indicated because active range of motion better reflected the Veteran's functional range of motion. However, in Correia v. McDonald, 28 Vet. App. 158, 169 (2016), the Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Correia v. McDonald, 25 Vet. App. 158 (2016). Therefore, a remand is necessary. Moreover, with respect to the Veteran's service-connected left shoulder disability, the May 2019 VA examiner indicated that muscle strength testing was normal during the examination. However, the examiner did not address a September 2014 private medical record noting that the Veteran experienced recurring left shoulder pain and spasms of the left rhomboid major and teres minor muscles, as directed by the Board. Stegall, 11 Vet. App. at 271. In addition, the May 2019 VA examiner identified "less movement than normal due to ankylosis, adhesions, etc." as additional contributing factors of disability for the left shoulder and right ankle disabilities. However, she also indicated that the Veteran did not have ankylosis of the left shoulder or right ankle. Therefore, on remand, the examiner should clarify whether the Veteran has ankylosis. Regarding the issue of entitlement to an increased evaluation for the service-connected left radial nerve disability, the Veteran was most recently afforded a VA peripheral nerve examination in April 2018. However, subsequent medical records suggest that the April 2018 VA examination may not reflect the current severity of his disability. In this regard, a December 2019 private medical record noted an assessment of left radial nerve paralysis. It was also noted that the Veteran reported having difficulty with fine and gross manipulative movements in his left hand and fingers, as well as decreased grip strength. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a remand is necessary to obtain an additional VA examination. The Board also finds that the issue of entitlement to TDIU is inextricably intertwined with the increased rating claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left shoulder, right ankle, and left radial nerve disabilities that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected left shoulder disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In particular, the examiner should provide the range of motion of the left and right shoulder in degrees on active motion, passive motion, weightbearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation for this determination in the report. The examiner should also identify any affected muscle groups, to include the extrinsic muscles of the left shoulder girdle: the trapezius, levator scapulae, and serratus magnus. He or she should state whether the Veteran has slight, moderate, moderately severe, or severe muscle impairment of any affected muscle group. In so doing, the examiner should consider the February 2014 private medical record noting that the Veteran experienced recurring left shoulder pain and spasms of the left rhomboid major and teres minor muscles. He or she should also consider the April 2018 VA examination report that indicated that the Veteran's reduction in muscle strength was entirely due to his left shoulder disability. The examiner should further state whether there is any ankylosis; malunion, recurrent dislocation, fibrous union, nonunion (false flail joint), or loss of head (flail shoulder) of the humerus; or, any impairment of the clavicle or scapula. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). Further, the examiner should comment as to whether ranges of motion measurements for active motion, passive motion, weight-bearing, and/or nonweightbearing can be estimated for the other VA examinations conducted during the appeal period. See, e.g., March 2014 and May 2019 VA examinations. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The examiner should also comment as to whether the functional impact of flare-ups can be estimated for the other VA examinations conducted during the appeal period, including any additional limitation of motion in terms of degrees. If the examiner is unable to provide a retrospective opinion as to functional impact of a flare-ups throughout the appeal period, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right ankle disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's service-connected right ankle disability. In particular, the examiner should provide the range of motion of the right and left ankles in degrees on active motion, passive motion, weightbearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). Further, the examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period. See, e.g., June 2012, March 2015, and May 2019 VA examinations. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected residuals of a left radial nerve injury. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's residuals of a left radial nerve injury. In particular, he or she should identify the affected nerve or nerve group. For each nerve or nerve group affected, the examiner should indicate whether the impairment is mild, moderate, or severe. He or she should also state whether there is incomplete or complete paralysis. To the extent possible, the examiner should distinguish the symptomatology attributable to each nerve. If the examiner is unable to distinguish the symptoms attributed to each nerve, the examiner should so state in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The AOJ should ensure that there has been compliance with the foregoing directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.