Citation Nr: 21022434 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-21 696 DATE: April 15, 2021 REMANDED An increased disability rating for limitation of motion of the right shoulder (a right shoulder disability) in excess of 10 percent from July 1, 2010, and in excess of 20 percent from June 29, 2015, forward, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1965 until his honorable discharge in October 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Manchester, New Hampshire, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted an increased disability rating of 10 percent for residuals, right shoulder injury, effective July 1, 2010. The Veteran filed a timely notice of disagreement. In a March 2016 rating decision, the RO granted an increased disability rating of 20 percent for limitation of motion of the right shoulder (previously rated as residuals, right shoulder injury), effective June 9, 2015. The Veteran filed a timely VA Form 9, substantive appeal to the Board, and requested a hearing before the Board. The Board notified the Veteran that a videoconference hearing was scheduled with a Veterans Law Judge on October 16, 2019, at the Veteran’s local VA office. See October 9, 2019 VA Correspondence. The Veteran did not appear for that hearing and, to date, has not requested that the hearing be rescheduled. There is no indication that the Veteran did not receive the notice of hearing or that the Veteran was otherwise unable to attend for a good-cause reason. Thus, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). In August 2014, the RO afforded the Veteran a VA examination to assess the severity of his right should disability. This is the only VA examination of record addressing the current severity of the Veteran’s right shoulder disability. That examination, however, is inadequate because it does not comply with the requirements of Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); Correia v. McDonald, 28 Vet. App. 158 (2016); or Sharp v. Shulkin, 29 Vet. App. 26 (2017). The VA examiner found the Veteran had additional limitations in range of motion during flare-ups but did not estimate the additional loss of motion nor elicit information as to the severity, frequency, or duration of such flare-ups. The VA examiner did not test for pain on both active and passive motion, in weightbearing and non-weightbearing, and did conduct testing of the opposite undamaged left shoulder joint. In addition, the Board finds a new VA examination is necessary to assess the current severity of the Veteran’s right shoulder disability because the prior examination is approximately seven years old. In his May 2016 VA Form 9, the Veteran stated his range of motion in his right shoulder is more limited now. Moody v. Wilkie, 30 Vet. App. 329, 341 (2018) (“Generally speaking, VA must provide a new examination when the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition.”). Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician to address the severity of the Veteran’s right shoulder disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner must report all signs and symptoms necessary to evaluate the Veteran’s right shoulder disability under the appropriate rating criteria. In particular, the examiner must provide range-of-motion test results (in degrees) as to the joint affected and of the opposite, undamaged joint, if possible, on (i) active motion, (ii) passive motion, (ii) weight-bearing, and (iv) non-weight-bearing. If the examiner cannot assess the motion of the opposite, undamaged joint, the examiner must explain why the assessment is not possible. In addition, the examiner is asked to opine whether the Veteran experiences functional impairment of the affected joint due to pain. If the Veteran does experience pain during regular diagnostic testing, the examiner must (i) clearly indicate the exact degree of movement at which pain limits motion in the affected joint and (ii) include the findings of at least three repetitions of range-of-motion testing. If there is no pain and/or no limitation of function, such facts must be noted in the report. In addition, the examiner is asked to give an opinion on whether pain could significantly limit functional ability during (i) flare-ups and (ii) with repeated use over a period of time. If there is functional impairment found during flare-ups or with repeated use over a period of time due to pain, the examiner must provide, if feasible, the degree of additional limitation of motion. If the Veteran reports experiencing flare-ups and the examination does not take place during a flare-up, the examiner must obtain information from the Veteran, medical records, and any other reasonably available source regarding the severity, frequency, duration, and functional loss manifestations associated with such flare-ups. Efforts to obtain such information should be documented. The examiner is reminded to consider the Veteran’s lay statements. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertions. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). L.M. YASUI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.