Citation Nr: 21027567 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 10-08 455 DATE: May 6, 2021 REMANDED Entitlement to an initial disability rating for residuals, right shoulder injury (non-dominant), in excess of 30 percent prior to June 26, 2017, is remanded. Entitlement to an increased disability rating for residuals, right shoulder injury (non-dominant), in excess of 20 percent from June 26, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1994 to December 1994 and May 2003 to December 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2008 and June 2017 rating decisions. In the August 2008 rating decision, service connection was granted for residuals, right shoulder injury, evaluated as 20 percent disabling effective August 23, 2006, the date of receipt of claim. In a November 2009 rating decision, the disability rating of the Veteran's right shoulder disability, which was mistakenly found to be his dominant side, was increased from 20 percent to 30 percent effective December 7, 2005, the day following separation from active service. In the June 2017 rating decision, finding that there was clear and unmistakable error in the November 2009 rating decision because the Veteran is left-handed, the evaluation of his right shoulder disability was decreased to 20 percent disabling effective June 26, 2017. In a December 2017 decision, in pertinent part, the Board denied entitlement to an initial disability rating in excess of 30 percent for residuals, right shoulder injury (non-dominant), prior to June 26, 2017, and in excess of 20 percent thereafter. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a November 2018 order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's decision as to the appealed issue, and remanded the matter for further development and readjudication consistent with the JMPR. In May 2019 and October 2020, the Board remanded this matter for further development, and the case has been returned for appellate consideration. Because August 2012 and April 2016 VA examination reports failed to comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017), in the JMPR, the parties agreed that the Board erred in finding that they were adequate for decision making purposes. Subsequently, the Board found that a January 2020 VA examination report also failed to comply with Sharp and failed to contain an adequate explanation for why the examining clinician could not provide the requested opinion. See October 2020 BVA Remand. Now, the Board finds that a March 2021 VA examination report not only fails to comply with Sharp but also fails to comply with the Board's remand directives, which sought retrospective opinions in this matter. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the Veteran, as a matter of law, the right to have compliance with the remand directives, and the Board has a duty to ensure such compliance); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA provides an examination, it must be adequate). Notably, the March 2021 examining clinician indicated with check marks that the examination was being conducted during a flare-up of symptoms as well as after repeated use over time. No explanations were provided. While the examining clinician recorded that the Veteran reported experiencing flare-ups weekly, that were mild and lasted hours, and were precipitated by overuse and alleviated by rest, the examining clinician did not indicate that the Veteran reported experiencing a flare-up at that time. Furthermore, the examining clinician did not indicate the nature of the activity that constituted repeated use over time after which the Veteran was being examined. Importantly, the requested retrospective opinions were not provided. Therefore, this matter must be remanded again to provide the Veteran with a new VA examination and to obtain retrospective medical opinions in accordance with Sharp as to the right shoulder's functional loss in terms of range of motion during flare-ups and after repeated use over time since the day following separation from active service, or, if medically impossible, an adequate explanation as to why the range of motion estimates cannot be provided. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion for remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (holding that the Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Also, on remand, any pertinent ongoing VA and private treatment records should be associated with the claims file. 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). These matters are REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his right shoulder disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination by an appropriately qualified clinician to address the nature and severity of his right shoulder disability. The claims file should be made available to the examining clinician, and the examining clinician should review the claims file in forming the requested opinions. The examining clinician should identify all right shoulder pathology found to be present since the day following separation from active service. Recording the results of range of motion for pain, the examining clinician must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing for both shoulders. The examining clinician should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examining clinician must also attempt to elicit from the Veteran information regarding the severity, frequency, and duration of any flare-ups, and the functional loss during flare-ups in terms of reduced range of motion. Likewise, the examining clinician must elicit the same information from the Veteran regarding his symptoms after repeated use over time. If it is not possible to provide a specific measurement or an opinion regarding symptoms or functional impairment during flare-ups or after repeated use over time 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). Additionally, after review of the relevant evidence of record since the day following separation from active service, including the Veteran's lay statements and the other evidence of record regarding frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment during a flare-up of symptoms and after repeated use over time, the examining clinician is asked to respond to the following questions: (a) provide estimates of range of motion in both active and passive motion, in weight-bearing and non-weight-bearing based on the evidence of record since the day following separation from active service; (b) provide estimates of functional loss in terms of range of motion during flare-ups since the day following separation from active service; (c) provide estimates of functional loss in terms of range of motion after repeated use over time since the day following separation from active service. If unable to provide these retrospective opinions, the examining clinician should state why and provide a reasoned explanation for the determination. In rendering these opinions, the examining clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examining clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examining clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examining clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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). 3. Readjudicate the claims. MAX P. SALAZAR, JR. Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Leanne M. Innet, 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.