Citation Nr: 21021686 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 11-21 862 DATE: April 13, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right shoulder arthritis with painful motion, previously rated as residuals of reconstructive surgery (shoulder disability), is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1995 to October 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in September 2020 for additional development. The matter is now returned to the Board for further appellate review. In September 2020, the Board remanded this matter for additional development. VA provided the Veteran an examination in January 2021. Based upon that examination, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s right shoulder rating to 20 percent and granted service connection for a surgical scar, related to the service-connected right shoulder disability, and rated it noncompensable under Diagnostic Code 7805. The Veteran has not submitted a notice of disagreement for the surgical scar rating. Therefore, that issue is not on appeal to the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). In the September 2020 remand, the Board requested the AOJ obtain a new medical examination regarding the severity of the Veteran’s right shoulder disability; finding the June 2010 and April 2014 VA examinations inadequate to adjudicate the Veteran’s claim. In the September 2020 remand, the Board requested the examiner provide range of motion (ROM) testing on active, passive, pain with weight-bearing, and without weight-bearing; indicate whether and at what point during the ROM testing the Veteran experiences any limitation of motion that is specifically attributable to pain; attempt to elicit information regarding the severity, frequency, and duration of any flare-ups; and estimate ROM in degrees during flare-ups. VA provided the Veteran an examination in January 2021; however, the examination is inadequate to adjudicate the Veteran’s claim. The examiner reported the Veteran’s initial ROM testing for flexion, abduction, external rotation, internal rotation and reported the Veteran experiences pain on each ROM test; however, the examiner did not clearly state at what point during the ROM of the shoulder joint the observed pain started. While it is possible that the noted end points of the Veteran's range of motion of the shoulder are reflective of where the pain began, that is not clear from the examination. Accordingly, the Board finds that the September 2020 remand directives have not been substantially complied with, and therefore another remand is necessary to obtain a new examination to determine the current severity of the Veteran’s right shoulder disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder disability. 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. 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). The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner must 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). All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.