Citation Nr: 21013728 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-03 537 DATE: March 10, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent for left shoulder degenerative arthritis is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from October 1973 to October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). This matter was previously remanded for further development in April 2019. In a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s left shoulder degenerative arthritis to 20 percent, effective June 25, 2013. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that in an October 2020 correspondence, the Veteran was notified that the Veterans Law Judge (VLJ) who presided over his November 2018 hearing no longer worked at the Board and the Veteran was given the option for another hearing before another VLJ. 38 C.F.R. § 19.3(b). The Veteran did not respond to the above correspondence nor has he communicated the desire for another Board hearing. As such, the Board will proceed with adjudication of the claim with the record on file. Entitlement to an increased rating in excess of 20 percent for left shoulder degenerative arthritis is remanded. The Veteran contends that his left shoulder condition is more severe than contemplated by the assigned rating decision. In its April 2019 remand, the Board requested that the Veteran be provided a VA examination to determine the current severity of his left shoulder condition. Pursuant to the April 2019 remand, a VA examination was requested for left shoulder degenerative arthritis in October 2019. However, subsequent correspondence reflects the examination was cancelled because the Veteran was deemed a no-show. See November 2019 Correspondence. The Board acknowledges that, under applicable law, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based on the evidence of record. 38 C.F.R. § 3.655 (b). In this case, however, a review of the record indicates that the Veteran may have not been properly contacted to confirm his upcoming VA examination. The evidence does not indicate whether the Veteran was notified that additional examinations would be scheduled, whether he was notified of the examination date(s) and time(s), or whether he was notified of the consequences of his failure to appear for examinations. In light of this evidence, it is doubtful whether the Veteran received notice of the scheduled examination for his left shoulder condition. Accordingly, affording the Veteran the benefit of the doubt, the Board is unable to presume that the Veteran was properly notified of the upcoming examination so as to permit the application of 38 C.F.R. § 3.655(b). See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). As such, the Board finds that the Veteran should be afforded an additional opportunity to undergo a VA examination in connection with his appeal. Therefore, the RO should schedule the Veteran for the appropriate VA examination and should also make appropriate efforts to contact and confirm the appointment with the Veteran. Such efforts to contact the Veteran should be documented. The Veteran is hereby notified that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims. The consequence for failure to report for a VA examination without good cause for an original claim may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the scheduled examination, documentation must be obtained to show that notice scheduling the examination was sent to his most recent mailing address of record. It must also be indicated whether any notice that was sent was returned as undeliverable. The Board notes that a revised criterion for rating musculoskeletal claims pursuant to 38 C.F.R. § 4.71a came into effect February 7, 2021. As the Veteran’s claim for his left shoulder condition is rated under Diagnostic Codes (DC) 5003-5201, which in part has been revised, the current severity of the left shoulder should be evaluated under these revised regulations. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with a qualified clinician to determine the current severity of his left shoulder condition. The record must reflect all attempts made to schedule the Veteran for an examination as well as written notification provided to Veteran of any scheduled VA examination. The examiner must be provided access to the electronic claims file and he or she must indicate review of the file in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. If feasible, and if current findings contradict those from prior examinations, the examiner should endeavor to provide retrospective findings of the nature and severity of the left shoulder condition over the claim period. To comply with the Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of the shoulder. 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. All pertinent symptomatology and findings must be reported in detail in accordance with rating shoulder disabilities. All ranges of motion involving the Veteran’s left shoulder condition should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran’s disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran’s left shoulder condition could significantly limit functional ability during rest or nonmovement, movement, flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. Notably, to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate range of motion during flare-ups or repetitive use over time based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results pertaining to the frequency, duration, characteristics, severity, and functional loss during flare-ups and repetitive use over time. The examiner must address the Veteran’s assertions that his left shoulder pains and ability to lift have worsened. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology, including reduced range of motion. If there is a medical basis to support or doubt the history provided by the Veteran, particularly pertaining to his description of reduced range of motion during flare-ups or repetitive use over time, the examiner should provide a fully reasoned explanation. Signature on the next page DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.