Citation Nr: 21023697 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-03 118 DATE: April 21, 2021 REMANDED Entitlement to an initial disability evaluation in excess of 10 percent for status post right shoulder labral repair prior to September 26, 2016, and in excess of 20 percent thereafter is remanded. Entitlement to an initial compensable evaluation for left knee disability prior to September 20, 2016, and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1994 to March 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from December 2011 and January 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In September 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Travel Board hearing. A transcript of that hearing is associated with the claims file. This case was previously before the Board in November 2019, when it was remanded for additional development. It has now returned to the Board for further appellate action. The record reflects that you were sent a letter indicating that you could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, you do not have a pending hearing request. You provided testimony in a hearing with a VLJ on September 20, 2016. I have considered the transcript of that hearing as evidence in making my decision. 1. Entitlement to an Initial Disability Evaluation in Excess of 10 Percent for status post Right Shoulder Labral Repair prior to September 26, 2016, and in Excess of 20 Percent thereafter is Remanded. In November 2019, the Board remanded this claim to obtain an addendum opinion, concluding that the December 2017 shoulder and arm conditions examination was inadequate because it had not considered functional impairment due to pain or during flare ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). An addendum opinion, as opposed to an examination, was requested. The remand indicated that an examination should be scheduled if deemed necessary. An addendum opinion was obtained in December 2019 by the examiner who conducted the December 2017 shoulder and arm conditions examination. She indicated that her opinion had been completed using chart review only. The Veteran contends that the addendum opinion is inadequate as it was based, in part, on his last in-person VA examination in December 2017. See August 2020 correspondence. According to the December 2019 examiner, the Veteran experiences pain with multiple types of uses of his right shoulder and estimated that the Veteran’s range of motion during flare-ups is from 0 degrees to 90 degrees on flexion, from 0 degrees to 85 degrees on abduction, from 0 degrees to 50 degrees on external rotation, and from 0 degrees to 85 degrees on internal rotation. Unfortunately, the examiner did not identify the points within the Veteran’s range of motion that can spark flare-ups. The examiner similarly noted pain would significantly limit functional ability but did not appreciably quantify that the limitation. Moreover, the opinion suggests that the Veteran avoids certain levels of activity that result in flares, which last 3 to 4 days. A determination needs to be made as to when pain associated with range of motion and reaching and lifting causes limitation of function. A new VA examination that identifies the limits or points within the Veteran’s range of motion that he must refrain from in order to protect against flare-ups would be helpful in assigning a rating for his service-connected right shoulder disability. Additionally, the Board notes that the Veteran’s right shoulder disability is rated under Diagnostic Code 5201 (limitation of motion). Effective February 7, 2021, the rating criteria under this code were revised. The AOJ has not considered the revised regulations; therefore, this issue must be remanded in order to avoid prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In light of the foregoing, the Board finds that a contemporaneous shoulder and arm conditions examination is warranted to ascertain the current severity of the Veteran’s service-connected status post right shoulder labral repair. 2. Entitlement to an Initial Compensable Evaluation for Left Knee Disability prior to September 20, 2016, and in Excess of 20 Percent thereafter is Remanded. An addendum opinion was obtained in December 2019 by the examiner who conducted the December 2017 knee and lower leg conditions examination. She indicated that her opinion had been completed using chart review only. The Veteran contends that the addendum opinion is inadequate as it was based, in part, on his last in-person VA examination in December 2017. See August 2020 correspondence. According to the December 2019 examiner, the Veteran experiences pain that significantly limits functional ability during flare-ups. She estimated that the Veteran’s range of motion during flare-ups as from 0 degrees to 110 degrees on flexion, and from 110 degrees to 0 degrees on extension. Unfortunately, the addendum opinion did not identify the points within the Veteran’s range of motion that can spark flare-ups. The examiner noted the Veteran’s flare-up symptoms last hours or longer if he has been very active prior to the flare-up; however, those points in his ranges of motion were not noted during the examination. A determination needs to be made as to when pain associated with range of motion and walking causes limitation of function. A new VA examination that identifies the limits or points within the Veteran’s range of motion that he must refrain from in order to protect against flare-ups would be helpful in assigning a rating for his service-connected left knee disability. The Board also notes that the Veteran’s left knee disability has been rated during the pendency of the appeal under Diagnostic Codes 5260 (limitation of flexion), 5261 (limitation of extension), and 5257 (recurrent subluxation or lateral instability). Effective February 7, 2021, the rating criteria under these codes were revised. The AOJ has not considered the revised regulations; therefore, this issue must be remanded in order to avoid prejudice to the Veteran. See Bernard, 4 Vet. App. at 394. In light of the foregoing, the Board finds that a contemporaneous knee and lower leg conditions examination is warranted to ascertain the current severity of the Veteran’s service-connected left knee disability. The matters are 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 status post right shoulder labral repair 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, to include under the new, revised Diagnostic Code 5201. 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 attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should elicit from the Veteran the point or points at which movement of his right arm initiates 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. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee 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, to include under the new, revised Diagnostic Codes 5257, 5260, and 5261. 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 attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should elicit from the Veteran the point or points at which movement of his left knee initiates 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. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.