Citation Nr: 21010820 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 11-32 135 DATE: February 25, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for a right shoulder labrum tear with degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from July 1992 to May 1996, from January 2001 to September 2001, and from November 2002 to November 2003. This matter comes before the Board on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in October 2017 for additional development. Pursuant to the Board’s remand, the RO obtained outstanding VA treatment records from July 11, 2000 forward, and readjudicated the Veteran’s claim. The RO issued a Supplemental Statement of the Case (SSOC) in January 2018, denying an initial rating in excess of 20 percent for the Veteran’s right shoulder disability. The RO then returned the case to the Board. In a July 2018 decision, the Board denied an initial rating in excess of 20 percent for the Veteran’s right shoulder disability. In a May 2019 Order, the United States Court of Appeals for Veterans Claims (the Court) granted a joint motion for remand (JMR), vacating the Board’s July 2018 decision and remanding the case for further action consistent with the terms of the JMR. Pursuant to the JMR, the Board remanded the case for further development in November 2019. The Veteran testified before the undersigned at a Board hearing in January 2021. While the Board regrets further delay, the Veteran’s appeal must once again be remanded as review of the claims file reveals that there was not substantial compliance with the Board’s prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand). Entitlement to an initial rating in excess of 20 percent for a right shoulder labrum tear with degenerative arthritis, is remanded. In the JMR, the parties agreed that the February 2017 VA examination for the Veteran’s right shoulder was inadequate because it did not include required testing under 38 C.F.R. §§ 4.40 and 4.45, and under DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); and Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Pursuant to the JMR, the Board remanded the case in November 2019 to afford the Veteran a new VA examination that complied with the requirements of Deluca, Mitchell, and Correia. The Veteran underwent a new VA examination on his right shoulder in January 2020. The examiner noted in the examination report that the Veteran does not experience flare-ups of his right shoulder disability. However, this finding is inconsistent with the description of symptoms provided by the Veteran on examination, in which he reported that his pain is exacerbated by raising his arm and alleviated by rest. The Veteran further stated that he experiences functional impact due to his right shoulder disability including, difficulty driving where he has to use his left arm (non-dominant), and experiencing pain and tenderness caused by pronated position. Moreover, at his Board hearing in January 2021, the Veteran indicated that when he works, if he has his hand and his arm on the desk typing too long, the shoulder will flare-up and cause pain. The Board notes that in Sharp v. Shulkin, the Court, citing Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010), held that an examiner may not decline to provide an opinion unless the examiner has "considered all procurable and assembled data" and offered a basis for this conclusion. Sharp v. Shulkin, 29 Vet. App. 32 (2017). Moreover, it must be apparent that the inability to provide an opinion without speculation reflects "the limitation of knowledge in the medical community at large," as opposed to a limitation of the individual examiner (lack of expertise, insufficient information, or unprocured testing). Id. Moreover, the November 2019 Board remand specifically directed the examiner to provide an opinion describing functional impairment of the Veteran’s right shoulder due to flare-ups. It is unclear as to why the examiner did not provide an estimate of functional loss during flare-ups; accordingly, the Board cannot find that there was compliance with the previous remand directives. In light of the above deficiencies, the Board finds the January 2020 examination to be inadequate. Because the examiner did not comply with the Board’s November 2019 remand directives, this matter must once again by remanded for compliance. See Stegall, 11 Vet. App. at 268. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate medical professional to fully assess the current severity of his right shoulder disability. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. Thereafter, the examiner is asked to address the following: (a.) Report the extent of the symptoms of the right shoulder disability in accordance with VA rating criteria. (b.) Conduct range of motion testing of the right shoulder, specifically noting the motion in degrees on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c.) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right shoulder disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. (d.) State whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must fully explain the basis of such an opinion. It should be noted that VA’s Clinicians Guide specifically advises examiners to procure information necessary to render an opinion regarding flare-ups from veterans. A full and complete explanatory rationale must be provided for any opinion(s) offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, s/he should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.