Citation Nr: 21031986 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-28 143A DATE: May 25, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease and chronic synovitis is remanded. Entitlement to a compensable evaluation, prior to June 6, 2019, and an evaluation in excess of 20 percent thereafter, for impingement syndrome, left shoulder, cortical cysts left humerus (also claimed as left shoulder arthritis), is remanded. Entitlement to a compensable evaluation, prior to June 6, 2019, and an evaluation in excess of 20 percent thereafter, for impingement syndrome right shoulder status-post slap tear repair and distal clavicle resection (also claimed as right shoulder arthritis), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1981 to May 2011. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Board remanded the case for further development in July 2018. The case has since been returned to the Board for appellate review. The Board observes that during the pendency of the appeal, in an October 2019 rating decision, the RO increased the disability rating from noncompensable to 20 percent for impingement syndrome, right shoulder, status-post slap tear repair and distal clavicle resection (also claimed as right shoulder arthritis), effective June 6, 2019. In that October 2019 rating decision, the RO also increased the disability rating from noncompensable to 20 percent for impingement syndrome, left shoulder, cortical cysts left humerus (also claimed as left shoulder arthritis), effective June 6, 2019. The Board has recharacterized the issues on appeal to reflect the staged ratings. The Board finds that another remand in necessary as the Veteran is entitled to substantial compliance with the July 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When these issues were last before the Board in July 2018, they were remanded to obtain outstanding treatment records and to have the Veteran undergo VA examinations to determine the current severity of his left knee, left shoulder, and right shoulder disabilities. Pursuant to the July 2018 Board remand, the Agency of Original Jurisdiction (AOJ) sent an April 2019 letter to the Veteran requesting that he provide and/or identify any pertinent private medical treatment records pertaining to his bilateral shoulder impingement syndrome and left knee condition. The April 2019 letter asked the Veteran to complete the enclosed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), so the VA could obtain treatment records on his behalf. The Veteran did not respond to this request and has not submitted any private medical records himself pertaining to his claimed conditions. However, the AOJ did not obtain the Veteran's outstanding VA treatment records from July 2012 to the present as instructed in the July 2018 Board remand directives. In this regard, the Board notes that although there is a CAPRI record in the file dated in July 2019 indicating "No progress notes found," the title in the uppermost bar of the document says "CAPRI connected to VISTA.BRONX.MED.VA.GOV." Although there is a tab for "Other Facilities Visited," this tab is empty. It is unclear whether the RO only checked for VA treatment records at a medical center in the Bronx. As the Veteran lives in Georgia and last received treatment at the Atlanta VA medical center (VAMC) in 2012, the RO should ensure that it checks for any outstanding VA treatment records from any potentially relevant VA facilities, including the Atlanta VAMC. The RO should document any unsuccessful attempts. As the AOJ failed to comply with the Board's remand instructions, remand is warranted. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, in the March 2021 brief, the Veteran's representative argued that the June 2019 VA examinations were inadequate, as the examiner did not provide an adequate opinion with respect to additional functional impact with repeated use over time and with flare ups. In Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. In light of the above, the Board finds additional VA orthopedic examinations, which adequately describe the functional effects of repeated use over time and with flare ups, are required. The matters are REMANDED for the following action: 1. Make efforts to obtain all relevant private medical treatment records for the Veteran's bilateral shoulder and left knee disabilities from August 2014 to the present in accordance with the duties set forth in 38 C.F.R. § 3.159(c). Document all requests for information, as well as responses in the claims vile. 2. Obtain the Veteran's VA treatment records for the period from July 2012 to the present. All attempts to obtain these records from the appropriate repositories must be documented. 3. After the above development has been completed, schedule the Veteran for the appropriate VA examinations to determine the current severity of his service-connected right and left shoulder impingement syndromes and left knee degenerative joint disease. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology associated with the bilateral shoulder and left knee disabilities should be reported. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity for an examination if an examination is deemed necessary. If a VA examination proves not feasible for any reason, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinions. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If an examiner is unable to furnish such an estimate, the examiner must indicate whether this inability is predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. 4. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.