Citation Nr: 21015176 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-19 572 DATE: March 16, 2021 REMANDED Evaluation in excess of 20 percent for left shoulder disorder with scar and retained metallic fragments is remanded. Total rating based on individual unemployability due to service-connected disability (TDIU), prior to May 28, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to October 1970, including service in the Republic of Vietnam for which he was awarded the Purple Heart and the Combat Action Ribbon. The Board remanded the issues on appeal in January 2020 for additional development. A December 2020 rating decision assigned a 20 percent evaluation for the Veteran's left shoulder disability, effective July 30, 2010, the date of receipt of his claim for an increased evaluation. The Board finds that there has not been substantial compliance with the January 2020 remand. Stegall v. West, 11 Vet. App. 268 (1998). 1. Evaluation in excess of 20 percent for left shoulder disorder with scar and retained metallic fragments is remanded. This issue is remanded to obtain an adequate VA examination. The report of a November 2020 VA Shoulder and Arm examination and the report of a November 2020 VA Muscle Injuries examination each fail to estimate the overall severity of the Veteran's left shoulder disorder. Such an opinion was requested by the Board's January 2020 remand and a September 2018 Board remand. Stegall, supra. In addition, the November 2020 VA examination reports fail to properly consider the Veteran's reported symptoms and set forth findings inconsistent with those symptoms without explanation. The Shoulder and Arms report relates that the Veteran reported that occasionally he had an aching pain to the left shoulder that was on and off depending on activity. It was usually an aching pain that made it difficult to perform weight-bearing activities, especially pushing, pulling and lifting. The report quotes him as saying “I can’t do any kind of lifting anything heavy.” Report at page 4. However, the report fails to address or consider these reported symptoms. It indicates that the Veteran's left shoulder disability did not impact his ability to perform any type of occupational task, including lifting, and specifies that there was no significant functional loss related to his left shoulder disability. The report does not explain how it reached these conclusions in light of the Veteran's reported symptoms. The November 2020 Muscle Injuries examination report sets forth the identical language regarding the Veteran's reports of left shoulder pain and resulting difficulty with weigh-bearing activities. The report states that due to muscle injury, the Veteran had loss of power of left Muscle Group VI and fatigue and/or pain of left Muscle Groups VI, V, II, XX and XXII. However, the report also states that the Veteran's relevant muscle strength testing was all normal; his muscle injuries did not impact his ability to work, such as resulting in an inability to keep up with work requirements due to muscle injuries; and there was no significant functional loss related to his left shoulder disability. The report does not explain how it reached these conclusions in light of the Veteran’s reported symptoms or the examination findings of loss of power and fatigue and/or pain. On remand, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left shoulder disability. 2. TDIU, prior to May 28, 2015, is remanded. This issue is inextricably intertwined with the remanded left shoulder issue, and its adjudication must be deferred pending the foregoing requested development. Since these claims are being remanded, the eFolder should be updated to include all outstanding VA treatment records. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s eFolder copies of all outstanding VA treatment records. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected left shoulder disorder with scar and retained metallic fragments. 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. 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). In so doing, the examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 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). (Continued on the next page)   3. The examiner must estimate the overall severity of the Veteran’s left shoulder disability, taking into account and considering any examination findings regarding loss of power and fatigue and/or pain of any involved Muscle Groups and the Veteran’s reported symptoms of left shoulder pain and inability to lift anything heavy. All opinions about functional loss must also take into account and consider any findings regarding loss of power and fatigue and/or pain of any involved Muscle Groups and the Veteran’s reported symptoms of left shoulder pain and inability to lift anything heavy. ERIC MINE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.