Citation Nr: 21008645 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-06 759 DATE: February 17, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent from June 3, 2011, for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1978 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. By way of background, Veteran has been service-connected for a left shoulder disability effective from the first day following separation from active duty in June 1979. The Veteran filed a claim in June 2011 for an increased evaluation in excess of her original 10 percent rating, and was granted an increased evaluation of 20 percent, effective from June 3, 2011, the date of claim for her increased rating. The Veteran filed a notice of disagreement in May 2014, saying her evaluation for her left shoulder was worse than rated. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a virtual Board hearing in January 2021. A transcript of the hearing is of record. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board notes the Veteran has not claimed a TDIU, and has not asserted that her service-connected disability prevents her from seeking and maintaining gainful employment. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that her disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of TDIU or SMC is not inferred by the record, and as such will not be discussed. 1. Entitlement to an increased rating in excess of 20 percent from June 3, 2011, for a left shoulder disability is remanded. The Veteran seeks a higher evaluation for her service-connected left shoulder disability. The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations of movement she endures on a daily basis. The Veteran’s last formal VA examination for her left shoulder was in April 2013, almost 8 years ago at the time of this Board remand. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran submitted medical records after her January 2021 hearing with the undersigned VLJ that indicate worsening of her left shoulder disability. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). In addition, since the Veteran’s left shoulder disability was last evaluated in a VA medical examination, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). This type of joint testing was not accomplished during the Veteran’s most recent VA examination in April 2013; accordingly, further VA examination is warranted. The Board notes that the Veteran reports flare ups of her shoulder disability. The examiner is reminded that when Veteran reports flare ups of any disability, the examiner is asked to provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). A functional loss results when ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance” is inhibited. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather “it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code.” Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board notes from the Veteran’s lay statements and Board testimony that her left shoulder pain is chronic and severe, and that she has had to take increasing amounts of pain-relievers for her shoulder pain. The Board also notes on February 7, 2021 that a substantial revision to 38 C.F.R. §§ 4.71a & 4.73, the schedule of ratings for musculoskeletal injuries and muscle injuries, respectively, took effect. 85 Fed. Reg. 76453 (Nov. 30, 2020). Part of the changes include revisions to Diagnostic Code 5201, arm limitation of motion, the diagnostic code currently used to rate the Veteran’s left shoulder. Because the Veteran’s claim originated prior to this change, the RO is reminded that either the old criteria or the new criteria can be used, whichever is more favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. After completion of the above, schedule the Veteran for a VA examination by an examiner with orthopedic expertise to determine the current nature and severity of her service-connected left shoulder disability. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted. The examiner should describe the nature and extent of the Veteran’s service-connected left shoulder disability, to include orthopedic and neurologic manifestations. For the examination provided for the left shoulder disability, the examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both of the joints in question. See Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examiner should conduct, consistent with 38 C.F.R. § 4.59, range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-ups, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding her flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. 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. 3. Thereafter, readjudicate the issue on appeal as noted above. Attention is invited to the revised 38 C.F.R. § 4.71a criteria for musculoskeletal disabilities, including the Veteran’s left shoulder, and the Veteran should receive the benefit of whatever criteria, old or revised, that provides a greater rating. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.