Citation Nr: 21023381 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 07-05 613 DATE: April 20, 2021 REMANDED Entitlement to an increased disability rating in excess of 20 percent for right trapezius strain (right shoulder disability) is remanded. REASONS FOR REMAND The Veteran had active service from July 1981 to February 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As relevant, in a December 2012 decision, the Board granted a 20 percent rating for right trapezius strain. The RO implemented the Board’s decision in a December 2012 rating decision. The Veteran did not appeal the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Rather, he filed a notice of disagreement (NOD) in February 2013. Notwithstanding the fact that the December 2012 rating decision informed him that he could file an NOD, the Veteran is precluded from filing an NOD with that rating decision as the Board’s December 2012 decision became final when it was issued. See 38 U.S.C.§ 7104(a); 38 C.F.R. § 20.1100. Any action taken by the RO on the Veteran’s NOD would place the RO in the prohibited position of reviewing the Board’s decision on the same factual basis, which is impermissible. See, e.g., Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) (an RO must not be placed in the anomalous position of reviewing the decision of the Board, a superior tribunal); see also VAOPGCPREC14-95 (the RO may not consider a CUE motion attacking an unappealed Board decision because doing so would essentially allow an RO to collaterally consider and overturn conclusions reached by the Board concerning the issues raised); see also Cacciola v. Gibson, 27 Vet. App. 45 (2014). Nonetheless, to the extent the Veteran’s NOD initiated appellate review with the ratings assigned, the Board finds that the increased rating issue on appeal is limited to entitlement to increased rating beginning immediately after the Board’s December 2012 rating decision. In July 2017, the Veteran provided testimony concerning this claim during a videoconference hearing before Veterans Law Judge (VLJ) Kessel. A transcript of the hearing is of record. In November 2020, the Veteran testified during a videoconference hearing addressing the same claim before VLJ Crawford. By way of a February 2021 letter, the Veteran was offered the opportunity to appear at a hearing before a third VLJ. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The letter informed the Veteran that if no response was received within 30 days of the date of the letter, the Board would assume he did not want a third hearing. No response was received; thus, no further action is needed. This appeal has been advanced on the Board’s docket pursuant. 38 U.S.C. § 7107(a)(2). Entitlement to an increased disability rating in excess of 20 percent for a right shoulder disability. The Veteran seeks a higher rating for his right shoulder disability. For the reasons that follow, the Board finds that additional development is necessary prior to adjudication. First, there may be outstanding, relevant private treatment records. At the November 2020 hearing, the Veteran testified that he receives treatment for his right shoulder from a private chiropractor and acupuncturist that VA referred him to. While VA treatment records confirm that the Veteran was referred to an oustide chiropractor and acupuncturist, the treatment reports from these providers are not of record. See May 2019 VA treatment record (approving treatment from outside acupuncturist); March 2020 VA treatment record (approving treatment from outside chiropractor). Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. Moreover, the Board remanded the claim in March 2018 in order to obtain a VA examination that complied with the requirements of Correia v. McDonald, 29 Vet. App. 26, 33 (2017) and Sharp v. Shulkin, 28 Vet. App. 158 (2016). The Veteran subsequently underwent a VA examination in June 2018. While the examiner addressed the requirements of Correia, with regards to additional functional loss following repeated use over a period of time or with flare-ups, he was unable to provide an opinion without resort to mere speculation. A review of his rationale appears to indicate that his inability to provide an opinion without resort to mere speculation was due to the fact that the Veteran did not use his shoulder repeatedly over a period of time/was not being observed following repeated use over a period of time or during a flare-up. In Sharp, the Court addressed the adequacy of “mere speculation” opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. Accordingly, the Board finds the June 2018 examiner’s opinion regarding additional functional loss to be inadequate, and a new VA examination should be obtained on remand. The Board also notes that the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified as 38 C.F.R. § 4.71a). However, the revisions did not substantially change the criteria used to rate the Veteran’s right shoulder disability as they simply added the degrees of limitation of motion to the description of each rating level. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the chiropractor and acupuncturist that he receives treatment from for his right shoulder disability. Make two requests for the authorized records from identified providers, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected right shoulder disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, in this case; he or she should clearly explain why that is so. The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not being observed after repetitive use or during a flare-up, the examiner must still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran’s description of his flares’ severity, frequency, duration, and/or functional loss manifestations. If there is pain on motion, the examiner should note the point in the range of motion where pain occurs. A rationale for any opinion offered should be provided. If the examiner is unable to offer an opinion as to any of the above inquiries, he or she should explain why. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.