Citation Nr: 21009344 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-40 446 DATE: February 22, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for residuals of a left humeral fracture (left shoulder disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to August 1978 and from December 1990 to April 1991 and had a verified period of active duty for training (ACDUTRA) from June 1987 to July 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in August 2019, and the Board granted an initial rating of 20 percent, but no higher, for the Veteran’s left shoulder disability. The Veteran timely appealed the April 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the parties filed a Joint Motion for Partial Remand, which the Court granted in an April 2020 Order, partially vacating the portion of the Board’s decision that had denied an initial rating higher than 20 percent for the Veteran’s left shoulder disability and remanded this claim back to the Board for further development and readjudication in compliance with its Order. In July 2020, the Board remanded this matter in order to obtain a new VA examination per the Court’s Order. Entitlement to an initial rating in excess of 20 percent for residuals of a left humeral fracture (left shoulder disability) is remanded. In the Joint Motion for Partial Remand, the parties stated that the Veteran’s November 2012 and January 2016 VA examinations were inadequate because the examiners failed to comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (measuring active and passive ranges of motion as well as pain with both weight-bearing and non-weight-bearing), as well as the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (soliciting information regarding flare ups and providing an opinion on how flare ups impact range of motion). The Board’s July 2020 remand instructed the examiner to test the Veteran’s active motion, passive motion, and pain with and without weight-bearing. The Board also instructed the examiner to attempt to elicit information regarding the severity, frequency, and duration of any flare ups, as well as provide an opinion on the degree of functional loss during flare ups. The Veteran was afforded a new VA examination in October 2020. The examiner provided measurements for range of motion in active and passive movements, as well as noted no objective evidence of pain with weight-bearing and non-weight-bearing. The examiner also noted the Veteran did not report having flare ups; however, the Veteran did report that his pain was worse with weather changes and that pushing, pulling, and movement to chest level and above caused pain. Although the examiner indicated there were no flare ups, the examiner still provided that the Veteran would have no additional loss in range of motion during a flare up. In a December 2020 Statement in Support of Claim, the Veteran stated he felt his October 2020 examination was incomplete, in part because the examiner did not measure his flare ups. The Board finds that the Veteran’s statements at the October 2020 exam and in the December 2020 written statement indicate that he does, in fact, experience flare ups with his left shoulder disability, and thus the October 2020 examination is inadequate because it does not appear to have adequately considered the Veteran’s reports regarding flare ups. Therefore, the Board must remand this matter in order to obtain a new examination. Accordingly, the matter is REMANDED for the following action: Schedule an examination with an appropriate clinician to reassess the severity of the Veteran’s service-connected left shoulder disability. To this end, the examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluation under the applicable rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare ups and the degree of functional loss during flare ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare ups based on the other evidence of record and the Veteran’s lay statements, including from previous VA examinations. If the Veteran does not report having flare ups during his examination, the examiner should evaluate limitation of motion during flare ups based on the evidence of record, including the Veteran’s written statements and verbal statements during the November 2012 and January 2016 examinations. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be given due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.