Citation Nr: 21076915 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-19 986A DATE: December 28, 2021 REMANDED Entitlement to an initial rating higher than 10 percent prior to May 31, 2018 for the service-connected left shoulder disability is remanded. Entitlement to a rating higher than 20 percent from May 31, 2018 for the service-connected left shoulder disability is remanded. REASONS FOR REMAND The Veteran served in the Marines from July 2005 to June 2014. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for a left shoulder disability and assigned a 10 percent evaluation. In July 2020, the Board denied entitlement to an initial rating higher than 10 percent for the service-connected left shoulder disability prior to May 31, 2018, and higher than 20 percent thereafter. The Veteran appealed the Board's July 2020 decision to the United States Court for Veteran Claims (Court) and a subsequent August 2021 Court Order granted a Joint Motion for Partial Remand (JMPR) and vacated that part of the Board's July 2020 decision that denied entitlement to an initial rating higher than 10 percent for the service-connected left shoulder disability prior to May 31, 2018, and higher than 20 percent thereafter. The remainder of the Board's July 2020 decision remained undisturbed. Entitlement to a rating in excess of 10 percent prior to May 31, 2018, and in excess of 20 percent thereafter for the service-connected left shoulder disability is remanded. A remand is necessary to comply with the terms of the August 2021 JMPR and Court Order. The JMPR reflects that the Board erred in its July 2020 decision when it relied upon September 2014 and July 2018 VA examinations that did not comport with the Court's interpretation of 38 C.F.R. § 4.59, as described in its holding in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Although the VA examiners provided active range of motion testing; the examination report does not contain range of motion testing with measurements in degrees for both weight-bearing and non-weightbearing motion, and passive range of motion testing. The Board notes that in the July 2018 examination, the examiner wrote "same as active ROM", however, per Correia, exact measurements in degrees are required or an explanation thereof as to why it could not be provided. Accordingly, the matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file 2. Provide the Veteran with a VA examination to identify the current nature and severity of the left shoulder disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his left shoulder disability since the date of claim in June 2014. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joints involved and the opposite joints should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non-weight-bearing situations. If the Veteran is unable to perform the testing because it is too painful or difficult, the examiner MUST ask the Veteran to provide the information by description. 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 why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **In this regard, based on the Veteran's lay reports and evidence of record, attempt to estimate any additional limitation of range of motion since the date of claim. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation 3. Thereafter, readjudicate the remanded appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.