Citation Nr: 21077163 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 11-05 429A DATE: December 28, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent prior to August 23, 2017 for service-connected right shoulder impingement is remanded. Entitlement to a disability rating in excess of 40 percent from August 23, 2017 to November 5, 2018 for service-connected right shoulder impingement syndrome is remanded. Entitlement to an increased disability rating in excess of 30 percent from November 6, 2018 forward for service-connected right shoulder impingement is remanded. REASONS FOR REMAND The Veteran had active-duty service in September 1997 with active-duty training from January to April 1980. This matter comes before the Board of Veterans' Appeals (Board) from an November 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied increased ratings for the periods prior to August 23, 2017, and from November 6, 2018, and granted an increased 40 percent rating for the period from August 23, 2017 to November 5, 2018. Subsequently, the Veteran appealed the aforesaid decisions to the United States Court of Appeals for Veterans Claims (CAVC). In a May 2021 CAVC Memorandum Decision, the Court remanded all periods on appeal in opining that the Board erred by relying upon inadequate VA examinations and medical opinions, and by not considering whether the Veteran is entitled to secondary service connection for his reported symptoms of sleep impairment, crepitus, and problems with shoulder rotation. Entitlement to increased disability ratings in excess of 20 percent prior to August 23, 2017, in excess of 40 percent from August 23, 2017 to November 5, 2018, and in excess of 30 percent from November 6, 2018 forward, for service-connected right shoulder impingement is remanded. As determined by CAVC, the VA examinations of record from August 2008, November 2016, and November 2018 are all inadequate to the extent that they do not fully comply with the requirements of Correia and Sharp relative to functional loss during flare-ups, as well as with active and passive motion, and in both weight-bearing and non-weight-bearing positions. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, CAVC has instructed the Board to obtain addendum medical opinions to address the aforesaid deficiencies. Additionally, relative to all periods on appeal, CAVC instructed the Board to address the Morgan analysis relative the Veteran's reported symptoms of sleep impairment, crepitus, and problems with shoulder rotation. See August 2008 VA examination report. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court found that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered. Furthermore, the Court held that "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." See Morgan, 31 Vet. App. at 162. Moreover, the Court indicated that the Board should consider all schedular alternatives for compensating a veteran, including secondary service connection, prior to any referral for extraschedular consideration. Id. In this case, for all periods on appeal, the question of ensuring maximization of schedular benefits for the Veteran's service-connected right shoulder impingement syndrome disability has not yet been finally resolved. Therefore, a remand is necessary for the AOJ to adjudicate, in the first instance, whether higher or separate ratings are warranted for the Veteran's reported symptoms of sleep impairment, crepitus, and problems with shoulder rotation as secondary to his service-connected right shoulder impingement syndrome. At this point, addressing the extraschedular question would be premature and improper, until further development has been completed. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his right shoulder disability, ensuring that range of motion is tested with active and passive motion, and in both weight-bearing and non-weight-bearing positions. In the course of this exam, obtain retrospective medical opinions for all periods on appeal, specifically prior to from May 29, 2009 to August 23, 2017, from August 23, 2017 to November 5, 2018, and from November 6, 2018 to present, that address the severity level of the Veteran's service-connected right shoulder impingement syndrome disability relative to functional loss during flare-ups. Attention is invited to the examination reports dated in August 2008, November 2016, August 2017, and November 2018 for descriptions of the Veteran's symptoms at each point in time. See also, Buddy/Lay statements in January 2010 regarding his pain levels, that may inform an opinion on what types of limitations flare ups have caused. 2. Develop and adjudicate the issue of whether higher or separate ratings are warranted for the Veteran's reported symptoms of sleep impairment, crepitus, and problems with shoulder rotation as secondary to his service-connected right shoulder impingement syndrome disability. See VBMS, document titled "VA Examination," receipt dated August 27, 2008. 3. After the above development has been completed, return the extra-schedular question to the Board for further appellate review, if still in order. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.