Citation Nr: 21011553 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-44 020 DATE: March 2, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent for right clavicle disability with tendonitis, degenerative joint disease, and impingement syndrome (right shoulder disability), since March 1, 2017, and thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1989 to November 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this case was previously before the Board in May 2018, November 2019 and August 2020. The Veteran is in receipt of a temporary evaluation of 100 percent rating effective January 27, 2017, and an evaluation of 20 percent rating from March 1, 2017. In its August 2020 decision, the Board granted an initial rating of 40 percent for the right shoulder disability from March 1, 2017 (the period after the temporary 100 percent rating). For the appellate period beginning March 1, 2017, the Board remanded the issue of entitlement to a rating in excess of 20 percent for the right shoulder disability. The RO having denied the increased rating as noted in a November 2020 Supplemental Statement of the Case (SSOC), the matter has returned to the Board. For the reasons noted below, the Board finds remand is necessary for additional development. Entitlement to an increased rating in excess of 20 percent for the right shoulder disability, since March 1, 2017, and thereafter, is remanded. In the August 2020 Board remand, the Board found inadequate the findings of the June 2019 VA examination, noting that the examiner did not adequately address the Veteran’s competent lay reports of decreased strength and episodes of tightness and locking in the right shoulder when stressed, as such reports could provide the basis for estimated functional loss or loss of range of motion during a flare-up or after repetitive use over time. The Board then directed the RO to obtain an additional VA medical opinion in which the examiner elicits information from the record to opine as to the Veteran’s flare-ups and functional loss from repeated use over time and the additional functional loss from both factors. As such, in regard to functional loss, a November 2020 VA examiner opined that the Veteran’s symptoms of locking are subjective only and following the right shoulder surgery, no locking is mentioned in treatment notes, only the VA examination reports. The examiner remarked that the last treatment note for shoulder locking was in 2012. The examiner thus concluded that no flare ups are present, the Veteran’s report of difficulty lifting his right arm above his head are subjective only, and the Veteran’s repetitive motion testing findings are as noted in the VA examination. When evaluating musculoskeletal disabilities, VA examiners are asked to express an opinion as to whether pain could significantly limit functional ability during flare-ups or when the arm is used repeatedly over a period of time. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). There are circumstances in which an examiners conclusion that such an opinion is not possible without resort to speculation is a medical conclusion. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). However, the disabling effect of painful motion is to be considered when rating joint disabilities. Id. Further, VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Id. Hence, essentially, what the November 2020 examiners conclusion amounts to is a statement that an opinion without resort to speculation cannot be offered as to whether the Veteran experiences additional functional loss from flare-ups and repeated use over time because the Veteran’s symptoms are only subjective. This is summarily stated by the examiner’ finding that because pain, weakness, fatigability, or incoordination was not reported to significantly limit functional ability during the June 2019 examination, the Veteran’s symptoms of locking and being unable to raise his arm above his head are only subjective, just as the June 2019 examiner did, thus also declining to address and opine as to whether the Veteran suffers additional functional loss. However, it is the subjective symptoms that are a primary factor in such type of evaluation. Here, the examiner relied on the June 2019 examination findings, which the Board previously found inadequate. Although there are recognized times when such opinions without resort to speculation are accepted as medical conclusions, the Board finds the circumstances are not present in this case. In this regard, it must be clear that the examiner has considered all procurable and assembled data. Sharp, 29 Vet. App. at 33. Here, the record is unclear as to whether the examiner considered the Veteran’s lay statements of locking and being unable to lift his arm above his head, as well as his report of flare-ups during the VA February 2013 examination which, in combination, may reasonably illuminate the medical analysis which the Board seeks in determining whether the Veteran suffers additional functional loss. Further, the Board notes that adequate examinations must be sufficiently detailed for the Board’s evaluation of the claimed disability to be a fully formed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, as the November 2020 examiner based her findings on the June 2019 examination, which the Board previously found inadequate, and the other medical evidence of record does not sufficiently address whether the Veteran’s disability is manifested by additional functional loss, remand for a new VA examination is the appropriate remedy. The matter is REMANDED for the following action: 1. Obtain any updated VA or private treatment records and associate those records with the claims file. 2. After the above development is complete, schedule the Veteran for a VA examination to determine the current severity level of his service-connected right shoulder disability. An in-person examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner must test for pain and record the range of motion for the right shoulder in active motion, passive motion, weight-bearing, and nonweight-bearing conditions and, if possible, with the range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, then the examiner should provide a clear explanation as to why the testing was not conducted. The examiner must also express an opinion as to whether there would be additional functional impairment on repeated use over time or during flare ups. The examiner should assess the additional functional impairment on repeated use or during flare ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare up at the time of the examination, the examiner should still estimate any additional functional loss during flare ups or on repeated use, based on the Veteran’s description of the severity, frequency, duration, and/or functional loss manifestations during such episodes. In providing the requested opinions, the examiner must consider and discuss the Veteran’s lay statements regarding his right shoulder, since March 1, 2017. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration given. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale for all opinions is required. 3. The Agency of Original Jurisdiction must review the examination report to ensure it complies with the above directive. If the examination report is deficient in any manner, undertake corrective action prior to returning the case to the Board for appellate review. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.