Citation Nr: 21008697 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 11-13 963 DATE: February 17, 2021 REMANDED Entitlement to a rating in excess of 20 percent for right shoulder tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2000 to November 2000. This claim is on appeal from a May 2010 rating decision. In October 2016, the Veteran presented testimony at a hearing before a Veterans Law Judge who is no longer employed by the Board. In a December 2020 letter, the Veteran was informed that he had the right to request another optional Board hearing by another VLJ who would decide his case. He did not respond to that letter and it was not returned as undeliverable; therefore, the Board will proceed with adjudication and presume the Veteran does not wish to appear at another hearing. Entitlement to a rating in excess of 20 percent for right shoulder tendonitis is remanded. In March 2019, the Board denied a rating in excess of 20 percent for right shoulder tendonitis and the Veteran appealed this decision to the United States Court of Appeals of Veterans Claims (Court). In January 2020, the Court issued an Order granting the Joint Motion for Remand (Joint Motion), which vacated the March 2019 Board decision and instructed the claim be remanded for compliance with directives outlined in the Joint Motion. Specifically, the Joint Motion notes that the Board relied on an inadequate November 2017 VA examination in its denial of the claim. Accordingly, the parties agreed that remand was required for a new examination which was compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017) to obtain estimated range of motion measurements during flare-ups and on repetitive use and for a retrospective opinion regarding the same as it pertains to the November 2017 examination. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative also have the right to submit additional evidence and argument on this matter. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the Veteran’s electronic claims file. 2. Afford the Veteran an examination to determine the current severity of his right shoulder tendonitis. The examiner must obtain from the Veteran and record in the examination report a complete description regarding the symptoms he experiences and any functional impairment. Following an examination, review of the claims file, and interview with the Veteran, the examiner must provide the following information: (a) Obtain from the Veteran and record in the examination the frequency, severity, and duration of flare-ups of the right shoulder. The examiner should also record all functional impairment the Veteran experiences during flare-ups. (b) All required range of motion measurements (both passive and active, in weight-bearing and nonweight-bearing) must be taken of the right shoulder, to include abduction and forward elevation (flexion). The same measurements must be taken for the opposite shoulder as well. (c) The examiner must attempt to provide estimations regarding any additional loss of range of motion during repetitive use and with flare-ups as it pertains to the examination he or she performed. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of any additional impairment based on the other evidence of record and the Veteran’s statements. If the examiner is unable to estimate functional loss in terms of degrees after physical examination and eliciting information from the Veteran, he or she must explain why and may not rely solely on the fact that she or she did not personally observe the Veteran perform range of motion testing on flare-ups or with repetitive use over time. (d) The same opinions requested in (c) above must also be provided with regard to the November 2017 examination in the form of retrospective opinions. If the examiner is unable to estimate functional loss in terms of degrees after reviewing the November 2017 examination report and eliciting information from the Veteran, he or she must explain why and may not rely solely on the fact that she or she did not personally observe the Veteran perform range of motion testing in November 2017 or personally observe range of motion on flare-ups or with repetitive use over time. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.