Citation Nr: 21014643 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 09-04 745 DATE: March 15, 2021 ORDER Entitlement to service connection for right lower extremity radiculopathy/peroneal neuropathy is denied. Entitlement to a rating in excess of 20 percent for left shoulder tendonitis and impingement syndrome, for the period from January 1, 2014 and continuing thereafter, is denied. REMANDED Entitlement to service connection for degenerative joint disease of the cervical spine is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to a rating in excess of 20 percent for left shoulder tendonitis and impingement syndrome, for the period prior to November 22, 2013, is remanded. Entitlement to a rating in excess of 20 percent for right elbow injury with traumatic arthritis, for the period prior to February 18, 2010, is remanded. Entitlement to a rating in excess of 20 percent for right elbow injury with traumatic arthritis, for the period from June 1, 2010 and continuing thereafter, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran’s right lower extremity radiculopathy/peroneal neuropathy is etiologically related to service or to a service-connected disability. 2. For the period from January 1, 2014 and continuing thereafter, the preponderance of the evidence shows the Veteran’s left shoulder tendonitis and impingement syndrome does not manifest in limitation of motion reduced to midway between side and shoulder level (flexion and/or abduction limited to 45°). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right lower extremity radiculopathy/peroneal neuropathy, to include as secondary to the Veteran’s service-connected disabilities, have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to an increased rating in excess of 20 percent for left shoulder tendonitis and impingement syndrome, for the period from January 1, 2014 and continuing thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.45, 4.71a, Diagnostic Code 5201. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to April 1992. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from July 2007, March 2008, and January 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in December 2017, September 2018, and December 2019. The Veteran’s claims were remanded for additional development. The case is now again before the Board for further appellate action. 1. Entitlement to service connection for right lower extremity radiculopathy/peroneal neuropathy is denied. The Veteran contends that he has right lower extremity radiculopathy/peroneal neuropathy that is secondary to his service-connected right elbow disabilities and a non-service-connected neck disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted on a secondary basis where the evidence shows (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A review of the Veteran’s service treatment records shows no evidence of treatment or diagnosis for right lower extremity radiculopathy/peroneal neuropathy. An August 1988 service treatment record reported the Veteran had a pulled muscle with no pain radiating into his legs. A March 1991 report of medical examination reported the Veteran’s spine and lower extremities were normal. An August 1991 report of medical history documented the Veteran’s report that he had no recurrent back pain. The Veteran was afforded a VA peripheral nerves conditions examination in March 2018. The Veteran reported that he could not recall any specific injury and attributed his radiculopathy to how he moved around with pain every day. He was diagnosed with right side radiculopathy, L5 S1, with June 2007 as the date of diagnosis. The Veteran was afforded another VA peripheral nerves conditions examination in January 2020. He was diagnosed with right lower extremity radiculopathy and peroneal neuropathy with 2006 as the date of onset. A January 2020 VA back examination reported the onset of the Veteran’s right lower extremity radiculopathy in 2006 when he reached down with his right arm to retrieve an object that had fallen. He had an electromyography in October of 2006 that was abnormal. The Veteran was afforded a VA medical opinion in October 2020. After reviewing the Veteran’s e-folder, the examiner reported that he could not determine a baseline level of severity of the Veteran’s right lower extremity radiculopathy/peroneal neuropathy based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by his service-connected right elbow and left shoulder disabilities, as he explained that medical evidence is not sufficient to support a determination of a baseline level of severity. The examiner opined that the Veteran’s right lower extremity radiculopathy/peroneal neuropathy was less likely as not aggravated beyond its natural progression by his service-connected right elbow and left shoulder disabilities. As rationale, the examiner provided the following: There is no possible physiologic or anatomic mechanism by which right elbow and left shoulder disabilities can aggravate the veteran’s radiculopathy of the right lower extremity. The theory is unique, but unfounded in medical anatomy and neurophysiology. Conditions of the left shoulder and right elbow exert no mechanical force on a radiculopathy of the lumbar spine, either directly or through compensation for those conditions. This is established medical knowledge and practice, confirmed by neuroanatomy and anatomy of the lumbar spine. If anything, one would anticipate less force exerted on uninvolved anatomical areas due to conditions of the left shoulder or right elbow. The Veteran was afforded another VA peripheral nerves conditions examination in November 2020. The Veteran reported that he developed right leg nerve problems several years ago. Upon trying to pick up a fallen newspaper, he heard a pop in his back and had jolting pain in his back to the right leg. He was told he had a pinched nerve in the right leg following a nerve test and a back MRI. The Veteran reported his current symptoms are intermittent shocking calf pain and numbness in the right leg. He treats his right leg symptoms with over the counter medications. The examiner opined that Veteran’s right lower extremity radiculopathy with common peroneal neuropathy is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected right elbow injury with traumatic arthritis or left shoulder tendonitis and impingement syndrome. As rationale, the examiner explained that there is no medical nexus for physiological or anatomic nexus for a right elbow traumatic arthritis, left shoulder tendinitis, or left shoulder impingement syndrome to cause the Veteran’s right lower extremity L5 radiculopathy or common peroneal neuropathy according to the weight of the medical literature and the evidence of record. The Veteran’s right lower extremity radiculopathy and common peroneal neuropathy is mostly likely due to the Veteran’s non-service connected lumbar degenerative disc disease as there is a medical nexus for lumbar degenerative disc disease to cause lumbar radiculopathy and common peroneal neuropathy according to the weight of the medical literature cited in the examiner’s evidence review. There is no anatomical or physiological nexus for conditions of left shoulder or right elbow to exert mechanical force on the nerves (sciatic/peroneal nerves) of the right lower extremity either directly or through compensatory mechanisms; this is established medical knowledge and practice confirmed by neuroanatomy and anatomy of the lumbar spine as stated in the October 2020 medical opinion, and confirmed by the weight of the medical literature. The examiner also opined that the Veteran’s right lower extremity radiculopathy was not aggravated beyond the normal disease progression by the Veteran’s service-connected right elbow injury with traumatic arthritis or left shoulder tendonitis and impingement syndrome as there is no evidence of any aggravation beyond the normal disease progression by the Veteran’s service-connected right elbow and left shoulder condition in the Veteran’s evidence of record, and this is to include no evidence of any aggravation of the right lower extremity radiculopathy via compensation or other impairments caused by the service-connected conditions in the evidence of record. As previously described, the Veteran’s service treatment records show no evidence of treatment or diagnosis for right lower extremity radiculopathy/peroneal neuropathy. The earliest documented post-service evidence of the Veteran experiencing symptoms of right lower extremity radiculopathy/peroneal neuropathy was in 2006 when he reached to the floor to retrieve a fallen object. While the Veteran believes his right lower extremity radiculopathy/peroneal neuropathy is related to either his service-connected disabilities, he is not competent to provide a nexus opinion in this case. The issue is medically complex and requires specialized knowledge and experience. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion on this issue. Consequently, the Board gives more probative weight to the October 2020 and November 2020 medical opinions. The November 2020 examiner opined that the Veteran’s right lower extremity radiculopathy with common peroneal neuropathy is less likely than not proximately due to or the result of the Veteran’s service-connected right elbow injury with traumatic arthritis or left shoulder tendonitis and impingement syndrome, as there is no anatomical or physiological nexus for conditions of left shoulder or right elbow to exert mechanical force on the nerves (sciatic/peroneal nerves) of the right lower extremity either directly or through compensatory mechanisms. The examiner explained that the Veteran’s radiculopathy and neuropathy is mostly likely due to the Veteran’s non-service-connected lumbar degenerative disc disease. The October 2020 examiner opined that the Veteran’s right lower extremity radiculopathy/peroneal neuropathy was less likely as not aggravated beyond its natural progression by his service-connected right elbow and left shoulder disabilities, as conditions of the left shoulder and right elbow exert no mechanical force on a radiculopathy of the lumbar spine, either directly or through compensation for those conditions. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for right lower extremity radiculopathy/peroneal neuropathy. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claims for right lower extremity radiculopathy/peroneal neuropathy must be denied. 2. Entitlement to a rating in excess of 20 percent for left shoulder tendonitis and impingement syndrome, for the period from January 1, 2014 and continuing thereafter, is denied. A January 2009 rating decision granted service connection for left shoulder tendonitis and impingement syndrome as secondary to the Veteran’s service-connected disability of right elbow injury with traumatic arthritis and assigned a rating of 10 percent, effective April 21, 2006. An October 2016 rating decision increased the rating to 20 percent, effective October 24, 2013. A temporary total rating was assigned, effective November 22, 2013, based on surgical treatment requiring convalescence. A 20 percent rating resumed, effective January 14, 2014. An August 2020 rating decision assigned an earlier effective date for the 20 percent rating to April 21, 2006, the date of receipt of the initial claim. The Veteran contends he is entitled to higher ratings, as he claims that his symptoms were worse than reflected by his current ratings. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Veteran’s left shoulder tendonitis and impingement syndrome has been rated under 38 C.F.R. § 4.71a, DC 5201. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level (clarified as flexion and/or abduction limited to 90 degrees under the new regulations) warrants a 20 percent rating, whether involving the major or the minor extremity. Limitation of motion of the arm midway between side and shoulder (clarified as flexion and/or abduction limited to 45 degrees under the new regulations) warrants a 20 percent rating for the minor extremity, and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side (clarified to note flexion and/or abduction in the new regulations) warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. As reported in an October 2013 VA examination, the Veteran has osteoarthritis of the left shoulder. The Veteran was afforded a VA shoulder examination in March 2018. The examination was inadequate as the examiner failed to estimate the degree of additional range-of-motion loss after repeated use. If an examination does not take place during a flare-up or after repeated use, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or after repeated use will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the March 2018 examiner made any attempt to ascertain adequate information from relevant sources to estimate the degree of additional range-of-motion loss after repeated use. The Veteran was afforded another VA shoulder examination in January 2020. The Veteran, who is right hand dominant, reported that the onset of his shoulder pain was in 2006. In November 2013, he underwent subacromial decompression and debridement. He reported that he still has pain with overhead or repetitive use. The Veteran reported experiencing flare ups that he described as increased pain with overhead use. The Veteran reported having functional loss or functional impairment of his as “decreased ability for these activities.” Range of motion testing of the left shoulder showed flexion from 0 to 150 degrees, abduction from 0 to 150 degrees, external rotation from 0 to 60 degrees, and internal rotation from 0 to 60 degrees. Pain was noted on all movements that did not cause functional loss. There was evidence of pain with weight bearing. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time, but the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner assessed that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time; therefore, there was no loss of range of motion with repeated use. The examiner indicated that the Veteran was not being examined during a flare-up, but the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. The Veteran indicated he was able to describe the functional loss in terms of range of motion: flexion from 0 to 100 degrees, abduction from 0 to 100 degrees, external rotation from 0 to 45 degrees, and internal rotation from 0 to 45 degrees. The examiner reported muscle strength during forward flexion and abduction as 4/5. The Veteran did not exhibit ankylosis. Both the Hawkins’ impingement test and empty-can test were positive. The examiner reported the Veteran underwent subacromial decompression in November 2013 with pain and stiffness as residuals. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. The examiner found that the Veteran did not have any conditions related to his clavicle, scapula, acromioclavicular joint or sternoclavicular joint. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for left shoulder tendonitis and impingement syndrome. The evidence of record shows that the Veteran is right hand dominant, as confirmed in the January 2020 VA shoulder examination report. The Board acknowledges the Veteran’s lay reports of symptoms and that there has been left shoulder functional loss during flare-ups due to increased pain from overhead use, as described in the January 2020 VA examination report. The January 2020 examination report shows that the VA examiner accepted the Veteran’s description that pain caused functional loss during flare-ups that limited flexion to 100 degrees, abduction to 100 degrees, external rotation to 45 degrees, and internal rotation to 45 degrees. The examiner also determined that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements do not result in symptoms more nearly approximating limitation of motion of the arm to midway between side and shoulder level of the major extremity (or with flexion and/or abduction limited to 45 degrees since February 7, 2021), or limitation of motion of the arm to 25 degrees from the side (including flexion and/or abduction since February 7, 2021). The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The January 2020 VA examination report shows that the VA examiner specifically determined that the Veteran did not have impairment of the humerus, clavicle, or scapula. None of the other evidence of record otherwise demonstrates pertinent impairment of the humerus, clavicle, or scapula. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for left shoulder tendonitis and impingement syndrome. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for degenerative joint disease of the cervical spine is remanded. While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran’s claim for service connection for degenerative joint disease of the cervical spine. In December 2019, the Board remanded the Veteran’s service connection claim for degenerative joint disease of the cervical spine as the Board had found that the March 2018 examination failed to provide an adequate rationale to support its conclusions. The Board directed the RO to obtain an addendum opinion that addresses the nature and etiology of the Veteran’s neck disorder that must address the Veteran’s in-service complaint of musculoskeletal neck pain in a service treatment record received in June 2013. The record referenced by the Board is a September 1988 service treatment record that reported the Veteran experienced a stiff neck for one to two days and was diagnosed with musculoskeletal neck pain. The Veteran was provided an examination and medical opinion in January 2020. He was diagnosed with degenerative arthritis of the cervical spine. The examiner opined that he could not determine a baseline level of severity of the Veteran’s cervical spine disorder based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by his service-connected right elbow and left shoulder disabilities, as he explained that there is no record of symptoms prior to around 2006, which is 14 years after the Veteran left military service. The examiner also opined that “[i]t is my medical opinion that his cervical spondylosis is not related to his military service.” As rationale, the examiner explained that the Veteran denied any injury to his neck during the January 2020 evaluation and he has no documentation of any neck injuries during his military service. Because the examiner’s opinion did not address the Veteran’s in-service complaint of musculoskeletal neck pain, the RO did not comply with the December 2019 remand. The United States Court of Appeals for Veterans Claims Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, as the examiner reported that there were no symptoms prior to 2006 and no documentation of any neck injuries during service, the Board finds the examiner’s opinion is inadequate, as a medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran’s claims file includes a September 1988 service treatment record that reported the Veteran experienced a stiff neck for one to two days and was diagnosed with musculoskeletal neck pain. Due to the deficiencies of the January 2020 medical opinion, remand is warranted to obtain an addendum opinion to address the etiology of the Veteran’s degenerative joint disease of the cervical spine. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 2. Entitlement to service connection for a low back disorder is remanded. While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran’s claim for service connection for a low back disorder. In December 2019, the Board remanded the Veteran’s service connection claim for a low back disorder, as the Board had found that the March 2018 examination failed to provide an adequate rationale to support its conclusions. The Board directed the RO to obtain an addendum opinion that addresses the nature and etiology of the Veteran’s low back disorder that must address the Veteran’s in-service complaint of musculoskeletal back pain reported in service treatment records received in June 2013. These records referenced by the Board are March 1986 service treatment records documenting that the Veteran experienced thoracic pain after sustaining a back injury. The Veteran was provided an examination and medical opinion in January 2020. He was diagnosed with intervertebral disc syndrome of the thoracolumbar spine. The examiner opined that he could not determine a baseline level of severity of the Veteran’s cervical spine disorder based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by his service-connected right elbow and left shoulder disabilities, as he explained that there is no record of symptoms prior to around 2006, which is 14 years after the Veteran left military service. The examiner also opined that “[i]t is my medical opinion that his lower back pain was not incurred in or aggravated by his active duty service. There is no documentation of any back injury during his military service.” Because the examiner’s opinion did not address the Veteran’s in-service complaint of musculoskeletal back pain, the RO did not comply with the December 2019 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, as the examiner reported that there were no symptoms prior to 2006 and no documentation of any back injuries during service, the Board finds the examiner’s opinion is inadequate, as a medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran’s claims file includes March 1986 service treatment records documenting that the Veteran experienced thoracic pain after sustaining a back injury and an August 1988 service treatment record reporting that the Veteran sustained indirect trauma to his back. Due to the deficiencies of the January 2020 medical opinion, remand is warranted to obtain an addendum opinion to address the etiology of the Veteran’s low back disorder. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 3. Entitlement to a rating in excess of 20 percent for left shoulder tendonitis and impingement syndrome, for the period prior to November 22, 2013, is remanded. While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran’s claim for a rating in excess of 20 percent for left shoulder tendonitis and impingement syndrome for the period prior to November 22, 2013. A January 2009 rating decision granted service connection for left shoulder tendonitis and impingement syndrome as secondary to the Veteran’s service-connected disability of right elbow injury with traumatic arthritis and assigned a rating of 10 percent, effective April 21, 2006. An October 2016 rating decision increased the rating to 20 percent, effective October 24, 2013. A temporary total rating was assigned, effective November 22, 2013, based on surgical treatment requiring convalescence. A 20 percent rating resumed, effective January 14, 2014. An August 2020 rating decision assigned an earlier effective date for the 20 percent rating to April 21, 2006, the date of receipt of the initial claim. The Veteran was afforded VA shoulder examination in April 2012 and October 2013 that did not comply with the holding of the United States Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. The examiners failed to include range of motion testing in passive motion, weight-bearing, and non-weight-bearing circumstances. The April 2012 examination was also inadequate as the examiner failed to estimate the degree of additional range-of-motion loss after repeated use and during flare ups, while the October 2013 examination failed to estimate the degree of additional range-of-motion loss after repeated use. If an examination does not take place during a flare-up or after repeated use, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or after repeated use will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the April 2012 or October 2013 examiners made any attempt to ascertain adequate information from relevant sources to estimate the degree of additional range-of-motion loss after repeated use. In consideration of the inadequacies of the April 2012 and October 2013 VA examinations, the Board finds that a remand is warranted for a new VA examination to provide a retrospective opinion, if possible, as to the severity of the Veteran’s service-connected left shoulder tendonitis and impingement syndrome for the period prior to November 22, 2013. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 4. Entitlement to a rating in excess of 20 percent for right elbow injury with traumatic arthritis, for the period prior to February 18, 2010, is remanded. While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran’s claim for a rating in excess of 20 percent for right elbow injury with traumatic arthritis for the period prior to February 18, 2010. In April 2006, the Veteran filed a claim for a rating in excess of 20 percent for right elbow injury with traumatic arthritis. The Veteran was provided a VA examination of his right elbow in April 2007. Range of motion testing showed right elbow flexion marked by pain at 90 degrees with the end of active range of motion at 110 degrees. Passive range of motion was to 115 degrees. Extension was full at zero degrees. Supination was marked by pain at the end of active range of motion at 60 degrees. Pronation was marked by pain at the end of active range of motion at 50 degrees. The examiner reported that, during a flare up or following repetitive use, the Veteran will be additionally limited by pain but not by weakened movement, excess fatigability, or incoordination. There is no indication that the April 2007 examiner made any attempt to ascertain adequate information from relevant sources to estimate the degree of additional range-of-motion loss during a flare up or after repeated use. Thus, the Board finds that the April 2007 examination was inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In consideration of the inadequacies of the April 2007 VA examination, the Board finds that a remand is warranted for a new VA examination to provide a retrospective opinion, if possible, as to the severity of the Veteran’s service-connected left shoulder tendonitis and impingement syndrome for the period prior to February 18, 2010. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 5. Entitlement to a rating in excess of 20 percent for right elbow injury with traumatic arthritis, for the period from June 1, 2010 and continuing thereafter, is remanded. In December 2019, the Board remanded the Veteran’s claim for a new examination to adequately document the current severity of the Veteran’s right elbow disability. The Veteran was provided a VA examination of his right elbow in November 2020. A Supplemental Statement of the Case (SSOC) addressing the Veteran’s increased rating claims for his right elbow was issued in December 2020. The Veteran was provided another VA examination of his right elbow in January 2021. However, a Supplemental Statement of the Case (SSOC) that addresses the increased rating claims for the Veteran’s right elbow has not been issued. The AOJ is required to issue a SSOC when, pursuant to a Board remand, it develops evidence or cures a procedural defect. 38 C.F.R. § 19.31(c). The only exceptions allowed for by the regulation are if: (1) the only purpose of the remand is to assemble records previously considered by the AOJ and properly discussed in a prior statement of the case or SSOC, or (2) the Board specifies in the remand that a SSOC is not required. Id. The Board’s December 2019 Remand falls under neither exception. Accordingly, on remand the RO must issue a SSOC after a review of all relevant evidence that addresses entitlement to a rating in excess of 20 percent for right elbow injury with traumatic arthritis, for the period from June 1, 2010 and continuing thereafter. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Return the claims file, including a copy of this remand, to the VA examiner who conducted the January 2020 VA neck and back examination, or to another appropriate medical professional if that individual is unavailable, to provide addendum opinions regarding the Veteran’s neck and back disorders and service-connected right elbow and left shoulder disabilities. The Veteran’s claims file, to include a copy of this remand, must be made available to the examiner along with any other information the medical professional deems pertinent. If additional examinations are required for the examiner to sufficiently provide addendum opinions, new examinations should be afforded. 4. Following review of the claims file the examiner should provide opinions on the following: (a) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s cervical spine disorder is related to his active duty service? (b) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s cervical spine disorder is proximately due to or caused by his service-connected right elbow and left shoulder disabilities, or any other service-connected disability. (c) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s cervical spine disorder is aggravated by his service-connected right elbow and left shoulder disabilities, or any other service-connected disability. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. (d) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s lumbar spine disorder is related to his active duty service? (e) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s lumbar spine disorder is proximately due to or caused by his service-connected right elbow and left shoulder disabilities, or any other service-connected disability. (f) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s lumbar spine disorder is aggravated by his service-connected right elbow and left shoulder disabilities, or any other service-connected disability. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. (g) If possible, the examiner should provide a retrospective opinion regarding whether joint testing of the Veteran’s left shoulder would have shown objective evidence of pain in passive motion and in non-weight-bearing motion from April 2006 to November 2013. In the opinion, the examiner should also address any functional limitations of the Veteran’s left shoulder disability in terms of range of motion due to repetitive use and flare ups based on the Veteran’s lay statements of experienced symptomatology. (h) If possible, the examiner should provide a retrospective opinion regarding whether joint testing of the Veteran’s right elbow would have shown objective evidence of pain in passive motion and in non-weight-bearing motion from April 2006 to February 2010. In the opinion, the examiner should also address any functional limitations of the Veteran’s right elbow disability in terms of range of motion due to repetitive use and flare ups based on the Veteran’s lay statements of experienced symptomatology. If it is not possible to provide retrospective opinions for the Veteran’s left shoulder or right elbow 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. 5. After the development described above, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, 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. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.