Citation Nr: 21025079 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-48 581 DATE: April 27, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease, left shoulder is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from November 1986 to October 1990. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Veteran contends that he is entitled to a higher rating than the 20 percent currently assigned for his left shoulder disability. The Board notes that the Veteran was last afforded a VA examination in October 2016. Upon review, the Board finds that remand is required to afford the Veteran a new VA examination. The United States Court of Appeals for Veterans Claims (the Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states, as relevant, that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing.” The October 2016 examination did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information. Specifically, while range of motion test results were reported, there was no indication that such testing was conducted on both active and passive motion. Therefore, the examination is inadequate and the Board must remand this matter for a new VA examination that complies with Correia. In addition, the VA examiner noted the Veteran’s report of functional loss with flare-ups and repeated use over time. No estimate was provided as to any additional limited range of motion during such periods. The explanation given by the examiner was that there was no change on examination. However, he noted that anterior pain limited overhead activities and lifting. No other opinions or rationale were provided. With respect to any additional functional loss during flare-ups of musculoskeletal disability, a VA examiner should offer a flare-up opinion based on estimates derived from information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In Sharp, the Court held a VA examination report to be inadequate because the examiner did not estimate the veteran’s functional loss due to flare-ups based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so. The Court determined that VA can accept an examiner’s statement that an opinion cannot be provided without resort to speculation, but “it must be clear that this is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). In this case, the VA examiner did not provide sufficient information for the Board to draw such a conclusion. Therefore, the Board will remand for an additional examination and any information identified by the examiner as necessary for a non-speculative estimate of additional loss of range of motion during a flare-up and with repeated use over time. 38 C.F.R. § 19.9 (a). The matter is REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or identified pertinent private treatment records to the extent possible. If such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Once the above has been completed to the extent possible, schedule the Veteran for an examination (or a telehealth interview, if an in-person examination is not feasible) by an appropriately qualified health care professional to determine the current severity of his service-connected left shoulder disability. The evidence of record must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary testing should be conducted. In particular, the examination must include tests of all applicable ranges of motion in active motion, passive motion, weight-bearing, and non- weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, if the examination is not conducted during a flare-up, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss (due to pain, weakness, fatigability, or incoordination) regarding any flare-ups by alternative means. The examiner must provide an estimate of functional loss in terms of range of motion based on the Veteran’s statements, available medical records, and other relevant sources. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page)   A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. 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 that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.