Citation Nr: 21008956 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-26 488 DATE: February 18, 2021 REMANDED Entitlement to a rating in excess of 30 percent for service-connected degenerative joint disease (DJD) of the right shoulder with chronic peritendinitis is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to July 1968. He was a member of the Puerto Rico National Guard from October 1974 to April 1987, during which time he had periods of active duty for training and inactive duty training. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 30 percent for the service-connected right shoulder disability and also denied service connection for a nervous disorder. The Veteran filed a notice of disagreement (NOD) in April 2017 and a statement of the case (SOC) was issued in April 2017. He perfected a timely appeal in May 2017. In a January 2018 decision, the Board, in pertinent part, denied a rating in excess of 30 percent for a right shoulder disability and service connection for an acquired psychiatric disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2018 Memorandum Decision, the Court partially vacated and remanded the portion of the January 2018 Board decision which denied a rating in excess of 30 percent for a right shoulder disability and entitlement to service connection for an acquired psychiatric disability and remanded the matters for readjudication. The Court additionally determined that the Board failed to consider the matter of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In a June 2019 Board decision, the claims were remanded for further evidentiary development pursuant to the November 2018 Memorandum Decision. A supplemental statement of the case (SSOC) was issued in July 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to a rating in excess of 30 percent for service-connected DJD of the right shoulder with chronic peritendinitis is remanded. In the June 2019 decision, the Board remanded the claim of entitlement to an increased rating for the right shoulder disability in order to provide the Veteran an updated VA examination. In pertinent part, the Board instructed that the VA examiner conduct range of motion testing of the right shoulder in active motion, passive motion, and (where appropriate) weight-bearing and nonweight-bearing settings. The examiner was also instructed to render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination, expressed in terms of degrees. The examiner was additionally instructed to indicate to what extent the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. Pursuant to the Board Remand, the Veteran was afforded a VA examination of the right shoulder in September 2019. Although the VA examiner conducted range of motion testing in active motion and with weight-bearing, the examiner failed to address range of motion in passive motion or with nonweight-bearing. To this end, the Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), 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). Accordingly, due to the inadequacy of the September 2019 VA examination, the RO failed to ensure substantial compliance with the Board’s June 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter must therefore be remanded in order to afford the Veteran a new VA examination as to his increased rating claim. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. 2. Entitlement to service connection for an acquired psychiatric disability is remanded. As described in the June 2019 Board decision, the Court’s November 2018 Memorandum Decision noted that the Board failed to discuss favorable medical evidence of symptoms, treatment, and diagnoses related to anxiety, anxiety disorder, and generalized anxiety disorder, which “apparently coincided” with the Veteran’s National Guard duty. To this end, service treatment records corresponding to the Veteran’s period of active duty and his periods of active duty for training are negative for complaints or findings of a psychiatric disability. The record on appeal does contain VA clinical records which show that, in October and November 1983, the Veteran was treated for anxiety and assessed with an anxiety disorder. In January 1984, he was again assessed with general anxiety disorder. A diagnosis of dysthymic disorder with anxiety features was indicated in February 1984. A Mental Hygiene Clinic note also shows that in May 1984, the Veteran suffered from anger outbursts and required a change to his medication. In November 1984, it was noted that the Veteran was two years status post cardiac surgery. He was diagnosed as having “physical condition affecting psychological stability.” According to the Veteran’s Army National Guard Retirement Credits Record, he was not on active duty for training on any of these occasions he received psychiatric treatment. However, in July 2018, the Veteran submitted a medical opinion from C. Mora Quesada, M.D., dated in July 2018. Dr. Mora Quesada diagnosed the Veteran with generalized anxiety disorder and “major depression disease,” which he indicated was “more probable than not secondary to [the Veteran’s] military service performance.” The Board remanded this matter in June 2019 in order to afford the Veteran a VA examination to address questions of diagnosis and nexus as to the claimed acquired psychiatric disability. Pursuant to the Board Remand, the Veteran was provided a VA examination in September 2019 at which time the examiner determined that the Veteran does not currently have a diagnosed mental disorder; the examiner therefore did not render a nexus opinion. Unfortunately, the VA examiner failed to address the mental health diagnoses previously documented in the Veteran’s treatment records (as described above). In this regard, the Board notes that the presence of a disability at the time of filing a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, given the September 2019 VA examiner’s failure to address the previously documented psychiatric diagnoses of record including generalized anxiety disorder, dysthymic disorder, and major depression, the Board finds that remand is required to afford the Veteran with a VA medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). 3. Entitlement to a TDIU is remanded. The matter of entitlement to a TDIU is inextricably intertwined with the matters of entitlement to an increased rating for service-connected right shoulder disability, as well as entitlement to service connection for an acquired psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, this claim must also be remanded. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The Veteran should also be afforded a VA examination in order to determine the extent of his service-connected right shoulder disability. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. In addition, the examiner should address the impact of the right shoulder disability upon the Veteran’s industrial activities including his ability to obtain and maintain substantially gainful employment. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed acquired psychiatric disability. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then provide an opinion as to the following: For any diagnosed psychiatric diagnoses (including the previously diagnosed generalized anxiety disorder, dysthymic disorder, and major depression), the examiner is requested to provide an opinion as to whether it is at least as likely as not that said disability was causally related to a disease or injury which occurred during the Veteran’s period of active duty or during any period of active duty for training or to an injury which occurred during any period of inactive duty training. In answering these questions, the examiner should address the Veteran's assertions of continuity of symptomatology dating from his military service. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.