Citation Nr: 21014364 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 18-34 469 DATE: March 12, 2021 REMANDED Entitlement to a rating in excess of 20 percent for rotator cuff tear and degenerative arthritis of the left shoulder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board denied an increased rating for the Veteran’s left shoulder disability and remanded a claim of entitlement to a total disability rating based on individual unemployability (TDIU). Thereafter, the Veteran appealed the Board’s denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision to such extent. The case now returns to the Board for further consideration. While additional evidence, to include updated VA treatment records and a December 2019 VA examination report, was associated with the record since the issuance of the June 2018 statement of the case, and the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence, no prejudice results to him in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand as the AOJ will consider such evidence in the readjudication of the claim. Additionally, in an April 2020 decision, the Board awarded a TDIU and, in a May 2020 rating decision, which implemented such decision, an effective date of December 3, 2019, was assigned. Following the Veteran’s request for a Higher Level Review with respect to the propriety of the assigned effective date, an October 2020 rating decision denied such claim. Later that month, he appealed such matter to the Board under the modernized appeals system known as the Appeals Modernization Act (AMA). Thus, such claim will be addressed in a separate Board decision issued at a later date, if otherwise in order. Entitlement to a rating in excess of 20 percent for rotator cuff tear and degenerative arthritis of the left shoulder. In the September 2019 decision, the Board denied a rating in excess of 20 percent for the Veteran’s left shoulder disability based, in part, on a February 2018 VA examination. However, in the JMPR, the parties found that that such VA examination was inadequate to decide the claim insofar as the examiner failed to properly address the Veteran’s flare-ups. Specifically, at such time, he reported flare-ups of left shoulder pain with any type of activity that required him to use his arm above the elbow level, to include such as minor as dressing up. However, while the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups, she indicated that it was not possible to estimate the loss of range of motion or describe loss of functionality due to pain, weakness, fatigability, and/or incoordination during flare-ups without mere speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under such circumstances. However, the parties found that, as she did not provide a sufficient rationale for such determination or state that such was based on a lack of knowledge in the medical community at large. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Therefore, the JMPR directed that the Veteran be provided with a new VA examination that properly addresses such matter. The Board observes that, while the case was pending at the Court, the Veteran underwent another VA examination to address the nature and severity of his left shoulder disability in December 2019. At such time, he again described flare-ups, but the examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups. Thus, such opinion should be reconciled with the findings rendered in connection with the examination conducted on remand. The matter is REMANDED for the following action: Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected left shoulder disability. The record, including a complete copy of this remand, must be made available for review in connection with the examination and all indicated tests and studies should be undertaken. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s left shoulder disability. (B) The examiner should record the range of motion of the left shoulder observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing, expressed in degrees (if possible), for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. (C) It is also imperative that the examiner comment on the functional limitations caused by repetitive use, repeated use over time, and flare-ups. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited following repetitive use and repeated use over time, and during a flare-up, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his left shoulder disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. In offering such opinion, the examiner reconcile such with the December 2019 VA examiner’s opinion that pain, weakness, fatigability, or incoordination did not significantly limit functional ability of the Veteran’s left shoulder during a flare-up. (E) The examiner should also comment upon the functional impairment resulting from the Veteran’s left shoulder disability. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.