Citation Nr: 21011926 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-43 347 DATE: March 3, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent for the appellate period from February 25, 2015 to December 20, 2017 for right shoulder strain with minimal degenerative joint disease, tendonitis, bursitis, acromioclavicular joint, ankylosis of glenohumeral and bicipital tendon tear, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from August 1969 to May 1980, including service in the Republic of Vietnam. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated July 2015 and February 2018 of a Department of Veterans’ Affairs (VA) Regional Office (RO). In October 2019, the Board granted a 40 percent rating for the Veteran’s right shoulder strain with minimal degenerative joint disease, tendonitis, bursitis, acromioclavicular joint, ankylosis of glenohumeral and bicipital tendon tear (right shoulder disability) for the period from February 25, 2015 to December 20, 2017, denied a rating in excess of 40 percent for that period, and granted a 50 percent rating from December 20, 2017. See Board Decision dated October 4, 2019. The Board’s decision was implemented by the RO in a November 2019 rating decision. The Veteran appealed the Board’s October 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR), remanding the aforementioned issue, and dismissing the appeal as to other claims. See Court Order dated July 6, 2020. The JMPR represents agreement between the parties (the Veteran and VA Office of General Counsel) that the Board erred by not (1) ensuring compliance with the duty to assist by providing an examination report that was adequate for rating purposes and (2) making findings inconsistent with the rating criteria for the Veteran’s service-connected right arm disability. Specifically, the JMPR reflects that the Board relied on a May 2015 VA shoulder examination that failed to comply with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). Additionally, the JMPR reflects that the Board finding that a higher rating for the period from February 25, 2015 to December 20, 2017 was not warranted because there was no “complete disuse” or “total loss of use” is not consistent with the rating criteria found under 38 C.F.R. § 4.71a, Diagnostic Code 5200, which requires only “unfavorable ankylosis with abduction limited to 25 degrees from side.” See Joint Motion for Partial Remand dated June 26, 2020 at pgs. 2-3. Consistent with the terms of the June 2020 JMPR and the Court’s July 2020 Order, the Veteran’s claim of entitlement to a disability rating in excess of 40 percent for the period from February 25, 2015 to December 20, 2017 for his service-connected right shoulder disability is remanded for an addendum examination report as set forth below. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, request an addendum examination report from an appropriately qualified VA clinician to determine retrospectively the severity of the Veteran’s service-connected right shoulder strain with minimal degenerative joint disease, tendonitis, bursitis, acromioclavicular joint, ankylosis of glenohumeral and bicipital tendon tear for the period from February 25, 2015 to December 20, 2017. Access to the Veteran’s electronic claims file, which shall include a copy of this Remand, must be made available to the examiner, for review in connection with providing the addendum. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to address the following: (a) Review the Veteran’s records for the period the rating period from February 25, 2015 to December 20, 2017, including, but not limited to: (i) the Veteran’s statements; (ii) the August 2015 NOD and statements therein; (iii), the August 2017 Form 9 and statements therein; (iv) treatment records; and (v) VA shoulder and arm conditions examination reports dated May 2015, July 2017, and January 2018. Please note that the parties to the June 2020 Joint Motion for Partial Remand, which was granted by the U.S. Court of Appeals for Veterans Claims, have determined the May 2015 VA examination to be inadequate, as discussed in the body of this Remand. (b) To the extent possible, retroactively estimate any loss of function as a result of flare-ups and repeated use for the rating period from February 25, 2015 to December 20, 2017 for the Veteran’s service-connected right shoulder strain with minimal degenerative joint disease, tendonitis, bursitis, acromioclavicular joint, ankylosis of glenohumeral and bicipital tendon tear. **In doing so, obtain information from the claims file as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. **The examiner should also address any ameliorative effects of medications and/or assistive devices the Veteran uses to treat his service-connected right shoulder disability. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered as set forth in the VA shoulder and arm conditions Disability Benefits Questionnaire (DBQ). The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **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 of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The examiner should also consider evidence of pain in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). A complete rationale should be provided for all opinions. 3. Ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 4. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.