Citation Nr: 21011713 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-30 222 DATE: March 2, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left shoulder impingement syndrome partial rotor cuff tear for the period of December 1, 2014 to December 5, 2014 is remanded. Entitlement to a rating in excess of 20 percent for left shoulder impingement syndrome partial rotor cuff tear from December 5, 2014 is remanded. Entitlement to a rating in excess of 20 percent for impingement syndrome/partial rotator cuff tear right shoulder, status post arthroscopic surgery (claimed as removal of part of bicep), is remanded. REASONS FOR REMAND The Veteran served on active duty in the Marine Corps from February 1998 to February 2002, and in the Army from June 2006 to August 2007, with additional service in the National Guard. Also, the Board notes that the Veteran was on active duty from September 2018 to September 2019. In September 2018,theVeteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2019, the Board remanded these matters to the RO for additional development. Regrettably, for the reasons discussed below, the right and left shoulder disability claims must again be remanded. 1. Right shoulder disability The May 2019 Board remand requested that the Veteran be scheduled for a VA examination to determine whether the Veteran should get a separate rating for his right bicep tendinosis. Specifically, the Veteran via his representative argued that the Veteran had surgery on his right shoulder to re-attach his bicep tendon, during which a portion of the bicep was removed. After the surgery on his bicep tendon, the Veteran contends that his reattachment ruptured. Thus, the Veteran’s representative contends that his bicep tendinosis should be rated separately from his service-connected right shoulder disability. The Board noted that, in order to avoid pyramiding, the Board must determine whether the Veteran’s right bicep tendinosis acts upon the same joint as the right shoulder and, if so, then the Veteran’s claimed condition is part of the service-connected right shoulder disability and cannot be afforded a separate rating. The Board specifically directed that a new CT or MRI of the right bicep be obtained so as to confirm the removal or rupture of the bicep tendon. Further, if after the appropriate imaging tests were conducted and if there is removal of the bicep, the VA examiner should indicate muscle was removed and any identify any residual effects of this surgery. In the November 2019 VA Shoulder and Arm Conditions DBQ, the Board notes that the Veteran was not scheduled for a CT or MRI and the only diagnostic testing referenced were x-rays from 2016. Moreover, the accompany November 2019 VA Medical Opinion the examiner determined that it is as least as likely as not that after the surgery on his right shoulder, there was rupture of the right bicep, based upon attachment location of the muscle to the joint, thus affecting the same joint as the shoulder. As rationale, the examiner determined that there is a clear right bicep deformity ridge. Further, the examiner noted that measurement of the right circumference is [sic] 1 centimeter (cm) less than the left. Finally, the degenerative joint disease of the right shoulder diagnosed in 2016 is a progression of the service connected condition. The Board finds that in failing to obtain the CT or MRI diagnostic testing the RO did not substantially comply with the prior remand directives. Regrettably, the Board is left without discretion to proceed in adjudicating the matter and the claim must be remanded to comply with the Board’s May 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Left Shoulder Disability As for the left shoulder disability, during the November 2019 VA Shoulder and Arm Conditions DBQ, the Veteran reported experiencing flare-ups and increased pain with overuse, lifting overhead, and repetitive motions. However, the VA examiner failed to provide range of motion findings for the left shoulder during flare-ups or, alternatively, comment as to why such objective findings were not possible. Instead, the VA examiner merely stated, “flare ups: no response provided.” The Board finds that this response is inadequate as it applies to the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Consequently, a remand is required for a new examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for the left and right shoulder disabilities to ascertain the severity and manifestations of these disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a.) The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected right and left shoulder disabilities under the rating criteria. The RO is reminded that during the pendency of this appeal, VA amended its regulations with respect to certain musculoskeletal disabilities, to include Diagnostic Code 5201 pertaining to limitation of motion of the shoulder, effective from February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201). As such, on examination, the VA examiner is directed to also incorporate the new regulations in Diagnostic Code 5201 in evaluating the left shoulder disability. (b.) Regarding specifically the right shoulder, the examiner is to perform new imaging (MRI or CT) of the right shoulder to clarify whether part of the Veteran’s right bicep was removed during his November 2013 surgery. If so, the VA examiner is asked to describe the muscle removed and any residual effects on the Veteran’s arm and shoulder due to the surgery. The VA examiner is asked to determine whether after the surgery on his right shoulder, there was any rupture of the right bicep. Also, the VA examiner is asked to clarify whether the Veteran’s bicep tendinosis affects the same joint as the shoulder, or whether this is a separate disability. (c.) For the right and left shoulders, the examiner should provide the range of motion in degrees for each shoulder. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (d.) The examiner shall inquire as to periods of flare- up, and note the frequency and duration of any such flare-ups for each the right and left shoulders. (e.) Any additional impairment on use or in connection with flare-ups MUST BE described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (f.) Regarding the left shoulder, the examiner is asked to reviewed the November 2019 VA examination and provide a retrospective opinion, if possible, regarding range of motion findings during a flare-up. If it is not possible to provide the requested information, the examiner is asked to provide an explanation to that effect. (g.) The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner must provide a clear rationale for all opinions provided. If any opinion cannot be provided without resort to speculation, the examiner must state this and explain why. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.