Citation Nr: 21010649 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-24 924 DATE: February 25, 2021 REMANDED A rating in excess of 20 percent prior to October 9, 2019, and a rating in excess of 30 percent thereafter, for left shoulder impingement syndrome is remanded. Service connection for left upper extremity neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to September 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA). This case was remanded in August 2018 for further development; it has since been re-assigned to the undersigned. 1. A rating in excess of 20 percent prior to October 9, 2019, and a rating in excess of 30 percent thereafter, for left shoulder impingement syndrome is remanded. The Board finds that further development is needed before it can proceed with adjudication. As stated above, the Board remanded this matter in August 2018 for further development. However, remand is again needed to comply with the August 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the August 2018 remand order, the Board directed the AOJ to obtain a VA examination to evaluate the Veteran’s left shoulder disability. The examination must include range of motion testing for active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing, or concludes that the required testing is not necessary, he or she should clearly explain why. The Veteran underwent a shoulder VA examination in October 2019. The examination report notes that there was objective evidence of pain on passive range of motion testing and non-weight-bearing. However, no range of motion measurements for passive motion were provided. Further, the Veteran was noted to have increased loss of range of motion during flare-ups, but the examiner stated there was “no basis to offer additional loss of function or motion during a flare up” without any further explanation. VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA examination does not fully comport with the requirements of Correia or Sharp. Thus, remand is necessary for a new VA examination. In addition, the examiner should provide a retrospective opinion regarding the Veteran’s left shoulder range of motion and level of functional impairment during the period from December 29, 2010 to October 8, 2019 (excepting the period from September 10, 2013 to December 31, 2013). 2. Service connection for left upper extremity neuropathy is remanded. The Board finds that further development is needed before it can proceed with adjudication. As stated above, the Board remanded this matter in August 2018 for further development. However, remand is again needed to provide the Veteran with an adequate VA opinion. The Veteran was provided a VA examination in October 2019. The VA examiner first provided an opinion that the left upper extremity neuropathy was at least as likely as not related to his service. She opined that the onset of the condition was during service, documented by service medical records. There is evidence of current, chronic, and continuous treatment and care. A nexus has been established. Subsequent to this VA examination and opinion, in July 2020, a clarification was requested, as at the examination the Veteran had reported in history that his first symptoms were approximately 8 years prior to the examination, which would be 32 years after his release from active duty service. A clarification was requested to explain the over 30 years span between service and first symptoms related to the Veteran’s left upper extremity neuropathy. The examiner stated “please disregard positive opinion as this was made in error. Please disregard previous rationale as this was also made in error.” The examiner found that the Veteran’s left upper extremity neuropathy was less likely than not incurred in or caused by his left shoulder disability during service. Subsequent to this opinion, the examiner provided another addendum opinion that the Veteran’s left upper extremity neuropathy was not aggravated by his left shoulder disability. However, the examiner did not provide a nexus opinion regarding direct service connection aside from noting that the prior opinion should be disregarded. Moreover, the examiner’s nexus opinion for secondary service connection is based on the absence of any documentation in the Veteran’s service treatment records at the time of his separation from service. Remand is, therefore, required to obtain a new opinion addressing the etiology of the Veteran’s left upper extremity neuropathy. The matters are REMANDED for the following action: 1. The AOJ should obtain updated VA and non-VA treatment records. 2. The AOJ should arrange for an examination of the Veteran by an appropriate clinician to assess the current severity of his service-connected left shoulder disability. The examiner should review the claims file (including this remand) and note such review was conducted. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. The examiner should provide, to the extent possible, a retrospective opinion regarding the Veteran’s left shoulder range of motion and level of functional impairment during the period of period of December 29, 2010 to October 8, 2019 (excepting the period from September 10, 2013 to December 31, 2013). In providing this retrospective opinion, the examiner should consider all relevant, procurable data in the claims file, including the Veteran’s lay contentions and/or statements made during prior examinations for the left shoulder, as well as any other VA and non-VA treatment records. 3. The AOJ should arrange an addendum opinion from an appropriate clinician, other than the October 2019 examiner, to determine the nature and likely cause of the Veteran’s left upper extremity neuropathy. The examiner should review the claims file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left upper extremity neuropathy was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. b. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left upper extremity neuropathy was caused by the Veteran’s service-connected left shoulder disability? Please explain why. c. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left upper extremity neuropathy was aggravated by the Veteran’s service-connected left shoulder disability? Please explain why. The opinion must address whether the disability increased in severity (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the left upper extremity neuropathy was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a left upper extremity neuropathy, alone, is insufficient rationale for a medical nexus opinion. A detailed explanation is required to support the opinion. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of the general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or expertise). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.