Citation Nr: 21076275 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-49 854 DATE: December 23, 2021 REMANDED Entitlement to a rating in excess of 20 percent for right shoulder degenerative joint disease with scars is remanded. REASONS FOR REMAND The Veteran served in the United States Army from June 1975 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board when he filed his appeal in October 2016. He was previously scheduled for a hearing in August 2019, where he failed to appear; August 2021, which was postponed; and October 2021, where he failed to appear. The Veteran did not provide good cause for his absence, nor did he request his hearing be rescheduled. As such, his hearing request is deemed withdrawn. However, the Veteran's representative submitted an Appellate Brief in lieu of a hearing in November 2021. 1. Entitlement to a rating in excess of 20 percent for right shoulder degenerative joint disease with scars is remanded. The Veteran underwent VA examinations in December 2015 and January 2017. In both examinations, the Veteran reported experiencing flare-ups in his right shoulder, although he was not experiencing a flare-up during either examination. Both examiners noted the Veteran experienced flare-ups, but neither provided an estimation regarding how his flare-ups would impact his range of motion, if at all, nor did either examiner opine on how pain, weakness, fatigability, and/or incoordination are impacted during a flare-up. The December 2015 examiner opined that they were "[u]nable to provide degree of additional [range of motion] loss because the degree of loss of ROM can only be speculated," although the examiner did note that the Veteran's flare-ups further restricted activities involving reaching overhead or lifting. The January 2017 examiner opined that they were unable to determine if the Veteran's flare-ups impacted any pain, weakness, fatigability, or incoordination in his shoulder because "[t]here is no conceptual or empirical basis for making such a determination without directly observing function under the flare up condition." Additionally, the January 2017 examiner opined that they were unable to provide any estimation on how flare-ups impacted the Veteran's range of motion because "[i]t is not possible to determine without resorting to mere speculation to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions." The reasoning of both the December 2015 and January 2017 examiners is insufficient under Sharp v. Shulkin, 29 Vet. App. 26 (2017). VA examiners must elicit from a veteran descriptions and reports from which loss of range of motion can then be estimated in actual degrees. Id. As the December 2015 and January 2017 examinations failed to provide estimations of loss of range of motion of the Veteran's right shoulder during a flare-up, VA finds these examinations inadequate. Additionally, although the Veteran has provided descriptions of how his flare-ups impact his right shoulder, there is no medical evidence in the record establishing or estimating the Veteran's degrees of range of motion during flare-ups. As such, the Board finds that a new VA examination is necessary in order to determine the extent of the Veteran's right shoulder disability. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an examination with a qualified examiner in order to determine the current severity and manifestations of his right shoulder disability. The examiner is to elicit information from the Veteran pertaining to his flare-ups, to include symptoms, limitations of movement, impact on his ability to perform tasks, and any additional pain, weakness, fatigability, or incoordination he experiences. The examiner is to use this information to provide an estimate, in degrees, on how the Veteran's reported flare-ups further impact his range of motion. Merely stating that providing an estimation without personally observing the Veteran during a flare-up does not constitute speculation and is not adequate. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must also indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.