Citation Nr: 21014239 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-19 516 DATE: March 11, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for right shoulder, traumatic arthritis with calcified tendonitis, prior to March 19, 2011, is remanded. Entitlement to an initial rating in excess of 30 percent for right shoulder, traumatic arthritis with calcified tendonitis, from March 19, 2011, to August 22, 2012, is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected right shoulder disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from September 1969 to May 1971, and from May 1978 to June 1978. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 Rating Decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for a right shoulder disability and assigned an initial 10 percent rating effective September 9, 2008. The Veteran appealed the initial rating assigned. In an October 2019 decision, the Board denied entitlement to an initial rating in excess of 20 percent for a right shoulder disability prior to March 19, 2011; granted entitlement to a 30 percent rating, but no higher, for a right shoulder disability from March 19, 2011, to August 22, 2012; and denied entitlement to a rating in excess of 40 percent for a right shoulder disability beginning August 23, 2012. The Board’s October 2019 decision also remanded the issue of entitlement to a TDIU for additional development. The Veteran appealed the Board’s denial of his claims of entitlement to higher initial ratings for his service-connected right shoulder disorder to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2020 Joint Motion for Partial Remand (Joint Motion), the parties moved the Court to vacate the portion of the Board’s October 2019 decision which denied entitlement to a rating in excess of 20 percent for a right shoulder disability prior to March 19, 2011, and denied entitlement to a rating in excess of 30 percent from March 19, 2011, to August 22, 2012. Significantly, the June 2020 Joint Motion did not disturb the portion of the Board’s decision that granted entitlement to a 30 percent rating for a right shoulder disability from March 19, 2011, to August 22, 2012, or the portion that remanded the issue of entitlement to a TDIU for additional development. Moreover, the Joint Motion indicated that Veteran no longer intended to pursue his appeal with regard to the Board’s denial of entitlement to a rating in excess of 40 percent for a right shoulder disability beginning August 23, 2012, and requested that the Court dismiss the appeal in that regard. In a July 2020 Order, the Court granted the Joint Motion and remanded the matters for action consistent with the Joint Motion. The Veteran seeks entitlement to higher initial ratings for his service-connected right shoulder, traumatic arthritis with calcified tendonitis, as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development is necessary before these claims can be adjudicated on the merits. As discussed above, a June 2020 Joint Motion found that the Board’s October 2019 decision erred in its denial of the Veteran’s claims of entitlement to higher initial ratings for his service-connected right elbow disability. Specifically, the Joint Motion indicated that the Board erred by relying on an inadequate January 2011 VA examination which failed to offer an opinion with respect to the Veteran’s right shoulder range of motion during flare ups, see Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); Deluca v. Brown, 8 Vet. App. 202, 206 (1995), and failed to specify the Veteran’s right shoulder range of motion during active, passive, weightbearing, and non-weightbearing testing. See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To be adequate, a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia, supra. In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca, supra; see also Mitchell, supra. Here, as the January 2011 VA examination did not include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, with range of motion measurements of the opposite undamaged joint, pursuant to Correia, a retrospective opinion for the Veteran's service-connected right shoulder disability is necessary and should address prior: range of motion; painful motion; additional loss of motion after repetitions and during flare ups; and functional loss due to pain, considering active and passive motion as well as weightbearing and non-weightbearing considerations for the period since September 2008. The retrospective opinion should also include paired joints. See Chotta v. Peake, 22 Vet. App. 80 (2008) (noting that a duty to assist may include development of medical evidence through a retrospective medical evaluation). The Board also finds that any decision with respect to the increased rating claims remanded herein may affect the Veteran's claim for a TDIU. Thus, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of this claim must be deferred until the appropriate actions concerning the Veteran's increased rating claims for his right shoulder disability are completed and the matters are either resolved or prepared for appellate review. Additionally, the Board’s October 2019 Remand instructions directed the RO to adjudicate the issue of whether entitlement to a TDIU, to include on an extraschedular basis, was warranted. In a July 2020 Supplemental Statement of the Case, the RO denied the claim of entitlement to a TDIU on the bases that the Veteran did not meet the schedular criteria for a TDIU; that the Veteran did not submit a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); and that referral to the Director, Compensation Service, for consideration of a TDIU on an extraschedular basis was not warranted. In his September 2020 Post-Remand Brief, the Veteran’s representative indicated that the Veteran was never notified that a VA Form 21-8940 was needed to further the development of his claim. As such, on Remand, the Board finds that the Veteran should be provided with a VA Form 21-8940 and requested to complete it before returning it to VA. Furthermore, the Veteran’s representative asserted that, even though the Veteran does not currently meet the schedular criteria for entitlement to a TDIU at any time during the rating period on appeal, there is evidence that he is unable to work due to his service-connected right shoulder symptomatology. Indeed, the January 2011 VA examiner indicated that the effect of the right shoulder condition on the Veteran’s usual occupation was that he could no longer work in construction secondary to an inability to lift and carry heavy objects. A July 2013 VA telephone note indicated that the Veteran was concerned about losing his home and lack of financial resources because he had been unemployed since 2009 due to service-connected disability. The matters are REMANDED for the following action: 1. Request that the Veteran submit a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), in addition to any evidence that is relevant regarding his claim for a TDIU, in particular any evidence regarding his level of education and work history. 2. Obtain a retrospective opinion regarding the severity of the Veteran’s right shoulder, traumatic arthritis with calcified tendonitis since September 2008. The entire claims file must be made available to and reviewed by the examiner. If a physical examination is deemed necessary, then one shall be provided. The examiner should provide a retrospective opinion as to the range of motion throughout the appeal period (i.e., since September 2008) of the right shoulder in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight-bearing, and (5) with the range of the opposite undamaged joint. This retrospective opinion should also specify, in terms of degrees, any painful motion or additional loss of motion after repetitions and during flare ups throughout the period on appeal. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, then he/she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). Finally, the examiner should provide an opinion as to the functional limitations the Veteran has experienced as a result of his service-connected right shoulder disability and what impact, if any, those have on his occupational functioning. 3. Thereafter, and after adjudicating the intertwined issues, adjudicate the issue of entitlement to a TDIU. If the Veteran does not meet the schedular requirement for a TDIU for any period on appeal (i.e., since September 2008), then refer the matter to the Director, Compensation Service, for extraschedular consideration of a TDIU. 4. After completing the requested actions, and any additional actions deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.