Citation Nr: 21005853 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-31 887 DATE: February 2, 2021 REMANDED Entitlement to an increased rating in excess of 30 percent for right shoulder degenerative joint disease, since August 18, 2014, is remanded. Whether new and material evidence have been received to reopen the claim for service-connection claim for a cervical spine disability, to include as secondary to right shoulder degenerative joint disease, is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1971 to December 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an increased rating in excess of 30 percent for right shoulder degenerative joint disease, since August 18, 2014, is remanded. The Veteran last underwent a right shoulder examination in December 2014. The Board notes that when rating diseases of the musculoskeletal system, the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of ROM testing for pain on both active and passive motion, weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Here, the December 2014 examiner did not indicate the results of ROM testing in compliance with Correia and Sharp. Moreover, although VA examinations do not necessarily expire or go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board’s evaluation of the claimed disability to be a fully informed decision. Barr v. Nicholson, 21 Vet. App. 303 (2007). As years have passed since the most recent VA examination, and the last examination is inadequate, remand is necessary to determine the current severity level of the Veteran’s disability. 2. Whether new and material evidence have been received to reopen the claim for service-connection claim for a cervical spine disability, to include as secondary to right shoulder degenerative joint disease, is remanded. With regards to the Veteran’s claim for service connection for a neck disability, the Board finds that the VA examination and addendum opinion obtained to be inadequate. The Board notes that the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d) (West 2014); 38 C.F.R. § 3.159 (c)(4) (2016); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). In a December 2014 examination, an examiner opined that the Veteran's neck condition is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition. The examiner rationalized that degenerative disease of his right shoulder does not cause degenerative diseases in another separate and unrelated joint as degenerative disease does not spread from joint to joint, although while it may coexist in different joints at the same time, that does not prove causality. In an April 2016 addendum opinion, a separate examiner opined that the condition is less likely as not aggravated beyond its natural progression by the Veteran’s service-connected right shoulder disability and rationalized that the Veteran was diagnosed in December 2014 and the condition is a progressive condition that naturally worsens with aging and although the Veteran is service connected for a right shoulder degenerative arthritis disability, degenerative changes in one joint such as right shoulder degenerative joint disease does not cause degenerative changes in another joint such as the cervical spine. The examiner concluded that therefore the Veteran’s cervical spine disability is less likely than not aggravated beyond its natural progression by the service-connected right shoulder disability. The Board notes that the examiner rationalized the opinion as to aggravation applying the same analysis as to that of causation. Causation involves consideration of being proximately due to or the result of a service-connected disability, distinguished from aggravation, which involves consideration of increase in severity beyond its natural progress because of a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Thus, the Board finds the opinions to be inadequate. The Board further notes that in his June 2015 notice of disagreement, the Veteran contended that doctors confirmed that both his right shoulder injury and neck injury occurred in service. The Board notes that the record is void of such competent medical evidence. Moreover, the record is void of a direct service connection opinion in light of the Veteran’s June 2015 statement. Remand is necessary to obtain adequate opinions. 3. Entitlement to TDIU due to a service-connected disability is remanded. In an August 2014 statement, the Veteran stated that minimal tasks are a problem for his right shoulder condition, he cannot work more than one hour before having problems, by the time he finishes dinner, his right arm is sleep and numb and neck-shoulder surgery is advised. The December 2014 examiner opined that the Veteran's condition impacts his ability to perform any type of occupational task, (such as standing, walking, lifting, sitting, etc.). Thus, the Board finds that the issue of entitlement to a TDIU rating has been reasonably raised by the record and is not a separate “claim” for benefits, but rather, is part and parcel of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, as the claim for increased rating for a right shoulder disability has a direct effect on the determination for a TDIU, the Board also finds that such claims are intertwined. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). The RO has not developed a claim of entitlement to a TDIU. On remand, such development is necessary. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and private treatment records and associate those records with the claims file. 2. Schedule the Veteran for a VA examination to assess the current severity level of his right shoulder degenerative joint disease disability. The examiner should note review of the record. An in-person examination may be scheduled if the examiner deems it necessary or may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should record the results of ROM testing for pain on both active and passive motion, weight-bearing and non-weight-bearing and ROM measurements of the opposite undamaged joint. The examiner should express an opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability. The examiner should portray the degree of any additional ROM loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiners should provide a sufficiently detailed explanation as to why. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his cervical spine disability. The examiner is asked to note review of and address the Veteran’s claims file. The examiner is asked to opine as to the likely nature and etiology of the Veteran’s cervical spine disability. An in-person examination may be scheduled if the examiner deems it necessary or may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should provide an opinion as to the following: (1) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability is caused by an injury during active service, or arose during active service; (2) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability is caused or aggravated by his service or his service-connected right shoulder degenerative joint disease disability. In providing the opinion, the examiner should consider and address the Veteran’s in-service report of head injury and any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of symptoms. (Continued on the next page)   4. Develop and adjudicate the Veteran's claim for entitlement to TDIU under the provisions of 38 C.F.R. § 4.16 and Rice v. Shinseki, 22 Vet. App. 447 (2009). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.