Citation Nr: 21006845 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-13 615 DATE: February 5, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right shoulder degenerative joint disease with impingement syndrome, prior to January 8, 2015, is remanded. Entitlement to a rating in excess of 20 percent for right shoulder degenerative joint disease with impingement syndrome, from to January 8, 2015, is remanded. Entitlement to a rating in excess of 10 percent for residuals of right ankle sprain with reconstructive surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1994 to March 1998, September 1998 to December 1999, and from October 2000 to June 2006. These matters come before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board issued a decision denying the claims for increased rating for the service-connected right shoulder disability prior to and from January 8, 2015, and for increased rating for the service-connected right ankle disability. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, the parties filed a Joint Motion for Remand vacating the Board's August 2019 decision denying the claims for increased ratings, and remanded the matter for readjudication in light of the Joint Motion for Remand. In light of points raised in the parties’ August 2020 Joint Motion for Remand, remand for additional development on the claims on appeal is warranted. In Sharp v. Shulkin, the Court found that an examiner’s opinion that he or she could not opine without resorting to speculation could be treated as adequate when two requirements are met: (1) where the examiner “has considered all procurable and assembled data before stating that an opinion cannot be reached”; and (2) where the examiner has explained “the basis for his or her conclusion that a non-speculative opinion cannot be offered.” Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Court went on to explain that this second requirement required that it be “apparent that the inability to provide an opinion without resort to speculation ‘reflects the limitation of knowledge in the medical community at large’ and not a limitation . . . of the individual examiner.” Id. In particular, the examiner in Sharp stated that “[i]t is not possible without mere speculation to estimate either loss of [range of motion] or describe loss of function during flares because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.” Id. at 30. The Court found this explanation to be insufficient because “direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion.” Id. at 35. The parties agreed that the VA examinations afforded to the Veteran to evaluate her right shoulder and right ankle disabilities were inadequate for rating purposes to the extent that they do not adequately address her flare-ups in compliance with Sharp. The parties noted various deficiencies with the 2012, 2015, and 2018 shoulder and ankle examinations, from failing to elicit statements regarding flare-ups, to failing to addressing whether flare-ups resulted in functional loss expressed in degree, or in failing to provide a basis for a conclusion that such a determination could not be made. Accordingly, remand for additional examinations that are compliant with the requirements of Sharp is warranted. In addition, the parties pointed out that the October 2012 and January 2015 VA shoulder examinations, which were used to evaluate the period prior to January 8, 2015, were not compliant with Correia v. McDonald, 28 Vet. App. 158 (2016), which requires that examination test for pain on active range of motion, passive motion, weight-bearing motion, and non-weight bearing motion. As such, a retrospective medical opinion must be sought to estimate the degree of range of motion the Veteran would have experienced if such had been tested at the time of the 2012 and 2015 examinations. In remanding for additional examination, the Board acknowledges that the Veteran was afforded a VA examination in October 2020 pertaining to the right shoulder, which does address the Veteran’s reported flare-ups. However, the Veteran indicated in an October 2020 statement that there was a language barrier with the examiner in discussing her medical history and symptoms, and that the examiner pushed her shoulder beyond the point where she was experiencing pain to take measurements. She noted that she was in an extreme amount of pain following the examination. Accordingly, the Board finds that the additional examination is still needed. Finally, in the January 2021 Informal Hearing Presentation, the Veteran’s representative raised questions as to the competency of the October 2020 VA examiner. On remand, the AOJ should provide the Veteran with information on the October 2020 examiner's qualifications. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency is raised, VA must satisfy its burden of persuasion as to the examiner's qualifications and provide information about the qualifications of a medical examiner to the veteran). The matters are REMANDED for the following action: 1. Assist the Veteran was obtaining any outstanding treatment record pertaining to the right should and right ankle. 2. Provide the Veteran with the October 2020 examiner's curriculum vitae and any other information necessary to establish the examiner’s qualifications. 3. Schedule the Veteran for a VA examinations to ascertain the current severity and manifestations of the Veteran's service-connected right shoulder and right ankle disabilities. The claims file should be made available to the examiner(s) for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion. Additionally, the examiner must include range of motion testing in the following areas: Active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the shoulder or right ankle is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight-bearing can be estimated for the 2012 and 2015 VA shoulder examinations. If the examiner is unable to conduct the required testing or provide the requested estimates, or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner must provide a complete rationale for all the findings and opinions. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.