Citation Nr: 21026757 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 99-09 169 DATE: May 3, 2021 REMANDED Entitlement to an initial rating higher than 20 percent for service-connected degenerative joint disease of the cervical spine (exclusive of the period from November 7, 2013 to January 31, 2014 when a temporary total rating was assigned pursuant to 38 C.F.R. § 4.30) is remanded. Entitlement to an initial rating higher than 20 percent for service-connected right shoulder tendonitis is remanded. Entitlement to an initial rating higher than 20 percent for service-connected left shoulder tendonitis, status post arthroscopy (exclusive of the period from September 25, 2015 to December 31, 2015 when a temporary total rating was assigned pursuant to 38 C.F.R. § 4.30) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1976 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1997 and September 2007 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The issues of entitlement to initial increased ratings for the bilateral shoulders and entitlement to a total disability rating based on individual unemployability (TDIU) were first remanded by the Board in December 2000 and denied in a March 2003 decision. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC) and in September 2003 the Court granted a Joint Motion for Partial Remand (JMPR), which partially vacated the March 2003 Board decision and remanded the issues to the Board for development consistent with the JMPR. The issues were then remanded by the Board again in July 2004 and February 2008. The Veteran then completed a substantive appeal for the issue of entitlement to an increased initial rating for his cervical spine disability in October 2008. In an April 2009 decision, the Board denied entitlement to increased initial ratings for the Veteran's bilateral shoulder disabilities and entitlement to a TDIU and remanded the issue of entitlement to an increased initial rating for his cervical spine disability. The Veteran appealed to the CAVC, and in February 2010 the Court granted a JMPR, which partially vacated the April 2009 Board decision and remanded the issues of entitlement to increased ratings for the bilateral shoulders to the Board for development consistent with the JMPR. Importantly, the issue of entitlement to a TDIU remains denied, as it was specifically noted as not subject to the JMPR. The issues of entitlement to increased ratings for the bilateral shoulders were remanded by the Board in March 2011. In April 2015, the issues of entitlement to increased ratings for the bilateral shoulders and the cervical spine were remanded. In an August 2017 decision, the Board denied entitlement to increased ratings for the bilateral shoulders and the cervical spine. The Veteran appealed to the CAVC, and in September 2018 the Court granted a JMPR, which partially vacated the August 2017 Board decision and remanded the issues back to the Board for development consistent with the JMPR. These issues were then remanded by the Board in March 2019 and May 2020. All issues are remanded. As noted, this appeal has a lengthy procedural history; an additional remand is necessary. In March 2019, the Board remanded these claims in response to the September 2018 JMPR to afford the Veteran new VA examinations that complied with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was afforded new VA examinations in September 2019; however, as noted in the May 2020 Board remand, the examinations did not comply with Sharp. In the May 2020 Board remand, the RO was again instructed to afford the Veteran new VA examinations that complied with Sharp. In response to the May 2020 Board remand, although the Veteran was afforded a VA examination for his bilateral shoulder disabilities, the RO failed to afford the Veteran a new VA examination for his cervical spine and only obtained a VA medical opinion pertaining to flare-ups. As such, the most recent in-person VA examination of the Veteran's cervical spine was conducted in September 2019 and, as noted, the Veteran was afforded a VA examination for his shoulders in August 2020. The Board notes these examinations are inadequate; the examinations fail to note the degree at which pain occurred during range of motion testing of the shoulders and cervical spine, despite reporting that the Veteran experienced pain in ranges of motion of the bilateral shoulders in August 2020 and of the cervical spine in September 2019. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Board notes that the September 2003, February 2010, and September 2018 JMPR's were based largely in part on inadequate examinations and a failure to appropriately analyze and consider functional loss and flare-ups of the Veteran's disabilities. The Board finds it necessary to remand these issues again to afford the Veteran VA examinations that contain the appropriate testing results in order to appropriately rate the severity of the Veteran's disabilities. Additionally, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). On remand, the examiners should ensure that all signs and symptoms necessary to rate the Veteran's disabilities under the revised rating criteria are included in the examination reports. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for his bilateral shoulder disabilities. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disabilities. *All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the right and left shoulders and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) pursuant to DeLuca. *Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH shoulders on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the shoulders cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. *In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. 3. Afford the Veteran a VA examination for his cervical spine disability. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. *All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the cervical spine and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) pursuant to DeLuca. *Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the cervical spine cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. *In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.