Citation Nr: 21011375 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 11-01 297 DATE: March 1, 2021 REMANDED Entitlement to a rating in excess of 30 percent between December 8, 2009 and May 17, 2010, and a rating in excess of 20 percent since September 1, 2010 (excluding the period of the appeal where the Veteran is rated at 100 percent between March 6, 2015 and May 31, 2015) for sclerotic articular surface with gapping of the AC joint, right shoulder, post-op arthroscopic repair, with surgical scars is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to June 1978. This appeal comes before the Board of Veterans’ Appeals (Board) from May 2010 (shoulder) and November 2010 (knee) rating decisions. In November 2016, the Veteran testified at a hearing before Veterans Law Judge (VLJ) Larkin. A transcript of the proceeding is in the record. In December 2020, the Veteran testified at a hearing before VLJ Crawford. Where two VLJs hold hearings on the same issues, a three-judge panel is assigned, and the Veteran must be afforded an opportunity for a third hearing before the third VLJ who will ultimately decide the appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran’s representative was aware that a hearing on the same issues was previously held by a different VLJ from the VLJ presiding over the December 2020 hearing. During the December 2020 hearing, VLJ Crawford informed the Veteran and his representative of the option of having an additional hearing before a third VLJ. The VLJ explained that the third hearing can be waived and there would be a panel decision with three VLJs. The Veteran and his representative indicated that they would like to proceed with the hearing and waive a third hearing with a third VLJ. See December 2020 Board hearing transcript. The issues will therefore be addressed by the three-judge panel below. This case was previously before the Board in March 2017 and October 2017, when the issues listed above were remanded for additional development. A January 2020 supplemental statement of the case was most recently issued, and the claims are once again before the Board. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 1. Entitlement to a rating in excess of 30 percent between December 8, 2009 and May 17, 2010, and a rating in excess of 20 percent since September 1, 2010 (excluding the period of the appeal where the Veteran is rated at 100 percent between March 6, 2015 and May 31, 2015) for sclerotic articular surface with gapping of the AC joint, right shoulder, post-op arthroscopic repair, with surgical scars is remanded. In the most recent October 2017 Board remand, the Board determined that the March 2017 VA examination of record was inadequate. The claim was remanded so the Veteran could be afforded an additional examination. The Veteran was once again afforded a VA shoulder and arm conditions examination in August 2019. The examiner noted flexion of the Veteran’s dominant right shoulder to 180 degrees and abduction to 100 degrees. Following repetitive testing, the examiner stated that pain and lack of endurance resulted in range of motion being reduced to 90 degrees of abduction. When considering flare-ups the examiner noted that flexion and abduction would be reduced to 90 degrees. The examiner noted that flares occur rarely since the Veteran’s last surgery. However, the Board notes that the Veteran most recently testified at his December 2020 Board hearing that the VA examination did not adequately consider the level of loss of actual movement of his shoulder. The Veteran’s representative noted that normally the Veteran could barely move his arm even halfway out from his thigh to his shoulder height. See BVA Transcript (T.) at 3. The Veteran also reported that he was taking Percocet for his pain and without those he would have actually been worse at the examination. The Veteran reported that when he goes to the grocery store, he might drop the bag because he cannot lift it up. When questioned further, the Veteran indicated that he was experiencing weakness of the shoulder. See T. at 6. The testimony provided by the Veteran at his most recent December 2020 BVA hearing indicates that his right shoulder condition may have worsened since he was last evaluated in August 2019. His testimony regarding his range of motion does not coincide with testing conducted in August 2019. In order to accurately rate the Veteran’s service-connected disability a new examination is needed. The Board finds that he should be afforded a new examination in order to determine the current nature and severity of this service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 1997). 2. Entitlement to service connection for a left knee disability is remanded. The Board initially remanded this claim in March 2017, finding that an October 2010 VA opinion of record was inadequate. The Board most recently remanded this issue in October 2017. In the October 2017 Board remand, it was noted that a March 2017 VA examination and opinion obtained were essentially inadequate because the VA examiner neglected to address the Veteran’s credible assertions (including sworn Board testimony) attesting to problems with his left knee during service. The Veteran was afforded another VA examination with opinion in August 2019. The August 2019 VA examiner once again failed to consider the Veteran’s assertions that he suffered from knee issues following separation from service and through the time he eventually sought treatment. In fact, the examiner’s rationale, for his negative opinion, is based in part on the finding that there was a nearly 33-year gap between the Veteran’s injury in service and further evaluation. The Board finds the rationale provided in the August 2019 negative opinion is inadequate. While the Board regrets further delay, it finds that a remand is warranted in order to ensure substantial compliance with the October 2017 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that service records reflect the Veteran was in an April 1977 in-service car accident. Treatment records reflect that he was treated for abrasions on both legs. In May 1977, in-service records show treatment for knee pain. A July 1977 treatment record notes treatment for left knee pain. The Veteran was diagnosed with a muscle strain secondary to an auto accident. The Veteran reported knee pain in a November 1977 treatment visit. In a March 1978 treatment record it was noted that the Veteran had pain in his knee since the accident. His separation examination subsequently reflected normal findings. Of record is a speculative positive VA opinion dated in July 2012. VA treatment records reflect a note signed by a contract orthopedic surgeon noting that the Veteran had asked if his meniscal tear and arthritis were related to the motor vehicle accident he had in the military. The treating practitioner noted that it is possible that could have contributed to the Veteran’s knee problems but there is no way to be certain. The Board finds that due to inadequacies in the rationale provided by the August 2019 examiner an additional addendum opinion should be provided. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination, or telehealth interview, to determine the current nature and severity of his service-connected sclerotic articular surface with gapping of the AC joint, right shoulder, post-op arthroscopic repair, with surgical scars. The Veteran’s claims file should be provided to the examiner. The examiner must obtain a detailed clinical history from the Veteran and must note all pertinent pathology found on examination in the report of the evaluation. Any testing deemed necessary should be performed. The examiner must provide a full description of all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must comment on the functional effects of the disability evaluated. 2. Obtain an addendum opinion from a qualified examiner regarding the Veteran’s service connection claim for a left knee disability. An examination is not required unless deemed so by the examiner. Is it at least as likely as not (50 percent provability or greater) that the Veteran’s left knee disability had its onset in, or is otherwise related to an event or injury in service? Consider and discuss the Veteran’s complaints of knee pain in service and his contentions that he has experienced left knee issues since service. (Continued on the next page)   The July 2012 VA treatment record opinion should be addressed. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. If opinions cannot be provided without an in-person examination, such should be scheduled. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.