Citation Nr: 21013713 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-29 440 DATE: March 10, 2021 REMANDED An initial disability rating in excess of 30 percent for the service-connected right shoulder degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1983 to September 1986. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for right shoulder degenerative joint disease and assigned an initial 10 percent disability rating, effective June 26, 2009. In July 2012, VA received the Veteran’s Notice of Disagreement (NOD). In a May 2016 rating decision, the RO increased the rating for the service-connected right shoulder degenerative joint disease to 20 percent, effective May 4, 2016. In May 2016, the RO issued a Statement of the Case (SOC). In June 2016, VA received the Veteran’s VA Form 9 appeal to the Board. In July 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is associated with the claims file. In a November 2019 decision, the Board granted a 30 percent initial disability rating for the service-connected right shoulder degenerative arthritis for the entire period on appeal (from June 26, 2009). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a November 2019 rating decision, the RO implemented the November 2019 Board decision, assigning a 30 percent initial disability rating for the service-connected right shoulder degenerative arthritis, effective June 26, 2009. In an October 2020 Court Order granting a Joint Motion for Partial Remand (JMPR) the Court vacated the Board’s November 2019 decision in part (insofar as it denied a disability rating in excess of 30 percent for the service-connected right shoulder degenerative joint disease) and remanded the case for further development in compliance with the directives specified in the JMPR. 1. Entitlement to an initial disability rating in excess of 30 percent for the service-connected right shoulder degenerative joint disease. During the July 2019 Board hearing, the Veteran indicated that his right shoulder degenerative joint disease had increased in severity since he was last examined by VA in May 2016. In this regard, during the July 2019 hearing, the Veteran testified that he could only raise his arm “a little” on a bad day, that he had radiating pain from the shoulder down the arm, and that his pain was “getting worse.” Furthermore, he reported “daily” flare-ups of locking of the right shoulder, “sometimes, if I even … grab a glass the wrong way or something.” Although range of motion testing for the right shoulder was completed during a July 2020 VA examination of the left shoulder, the examiner did not question the Veteran about his right shoulder during the examination because the examination was scheduled for purposes of obtaining a medical opinion addressing the Veteran’s left shoulder service connection claim. Furthermore, the RO has not yet considered this evidence as it relates to the right shoulder. Finally, the Court has held that 38 C.F.R. § 4.59 requires VA examination to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the May 2016 examination report does not contain Correia findings. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected right shoulder degenerative joint disease that includes the information required by Correia. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to determine the current severity of his service-connected right shoulder degenerative joint disease. The claims file, including a copy of this Remand, should be made available to the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, to include joint range of motion studies. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also 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 additional functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degree of limited motion due to pain, locking and/or swelling, that is caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degree of additional range of motion loss due to pain, locking and/or swelling during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue of entitlement to an initial disability rating in excess of 30 percent for the service-connected right shoulder degenerative joint disease. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.