Citation Nr: 21032887 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 13-06 302A DATE: May 28, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for the period prior to September 9, 2020 and in excess of 20 percent thereafter for right shoulder degenerative joint disease, status post-surgical repair (hereinafter, right shoulder disability) is remanded. Entitlement to an initial rating in excess of 10 percent for the period prior to September 9, 2020 and in excess of 20 percent thereafter for status post left shoulder surgery, well-healed surgical scar, and mild degenerative changes (hereinafter, left shoulder disability) is remanded. Entitlement to an initial compensable rating prior to September 24, 2012, and in excess of 10 percent rating thereafter for lumbar spondylosis is remanded. Entitlement to an initial compensable rating prior to May 14, 2012, and in excess of 10 percent thereafter for left knee degenerative arthritis is remanded. Entitlement to an initial rating in excess of 10 percent for the period prior to September 9, 2020 and in excess of 20 percent thereafter for plantar fasciitis, status post right foot surgeries with mild degenerative change of the first metatarsophalangeal, plantar heel spurs, and residual scars (hereinafter, right foot orthopedic disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1990 to August 2010, which included service in Afghanistan and two additional tours of duty in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2012, the Veteran testified during a formal RO hearing regarding these claims. As reflected on the title page herein, the issues of entitlement to increased ratings for right and left shoulder disabilities and a right foot disability have been recharacterized to accurately reflect the scope of the Veteran's claims subsequent to the November 2020 rating decision assigning higher evaluations effective September 9, 2020. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the evidence of record). As the higher evaluations for less than the entire initial rating period are considered partial grants of the sought after benefits, the issues of entitlement to increased ratings for right and left shoulder disabilities and for a right foot disability remain on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Procedural History This case has a lengthy procedural history which is detailed in the prior Board decisions and remands of July 2015, May 2018, and July 2020. Most recently, in July 2020, the Board denied service connection for a left wrist disorder and remanded for further development the issues of entitlement to service connection for a right ankle disorder and increased ratings for the Veteran's right and left shoulder, lumbar spine, left knee, and right foot disabilities. The RO's November 2020 grant of service connection for right ankle strain is considered a full grant of the benefits on appeal for the right ankle claim. As such, this issue is no longer before the Board for appellate consideration. A.B., supra. Pursuant to the Board's July 2020 remand, the Veteran was afforded VA examinations in September 2020 for his right and left shoulder, lumbar spine, left knee, and right foot disabilities and the examination reports are of record and have been reviewed. However, the Board finds there has not been substantial compliance with its July 2020 remand directive requesting retrospective opinions regarding the severity of these disabilities earlier during the rating period on appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). VA Retrospective Opinions Although the Board regrets the additional delay, a remand is again necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Once VA undertakes the effort to provide an examination or medical opinion, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Court has held that a remand to obtain VA medical opinions regarding retrospective findings is appropriate. Chotta v. Peake, 22 Vet. App. 80, 85 (2008). In its July 2020 remand, the Board directed that a VA examiner "review the VA examination reports containing range of motion findings pertinent to the Veteran's shoulders, lumbar spine, left knee, and right foot conducted during the course of the appeal" and "offer an opinion as to the range of motion findings, expressed in degrees, for pain on passive motion, weight-bearing, and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The Board also specified that if the examiner could not provide such retrospective opinions, he or she was to "make clear that he or she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran) but that any member of the medical community at large could not provide such an opinion without resorting to speculation." Id. In a January 2021 opinion, the VA examiner concluded in regard to 2010 and 2012 VA examination reports: "There is no way to determine if the range of motion was active or passive motion or if the joint was measured in weight bearing or nonweight bearing without mere speculation. There is no documentation of context throughout the exam for any indication." See VA addendum dated January 26, 2021. To the contrary, both the 2010 and 2012 examination reports reflect the Veteran's lay descriptions of limitation of motion of his various joints then under evaluation. For example, the Veteran stated during the May 2010 VA knee examination, for example, "I can't put pressure on the knees with body weight." During the September 2012 VA shoulders examination, the Veteran said he was "Unable to do any work above shoulder level around home." While these descriptions may be imperfect in that they were not expressed or recorded in terms of the rating criteria, they are relevant to the function of the Veteran's left knee on weight-bearing, and to the limitation of motion of both shoulders during those time periods, and demonstrate that the 2010 and 2012 VA examinations provide context for the inquiry at hand. Thus, the record does not support the VA examiner's assertion that he considered all procurable data or that any member of the medical community at large could not provide the requested opinions without resorting to speculation. Stegall, supra. While the Board appreciates the inherent difficulty in providing retrospective opinions, the Court's guidance in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) expressly provides: "[T]he examiner must elicit relevant information as to the veteran's flares or ask him [or her] to describe the additional functional loss, if any, he [or she] suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she could not do so. Sharp, 29 Vet. App. at 35. Here, the Veteran's lay replies to such questions are reflected in the 2010 and 2012 VA examinations and elsewhere in the record, leaving the interpretation of such, to the extent possible, to a medical professional upon thorough review of the record. Accordingly, remand is necessary to obtain adequate retrospective opinions addressing the severity of the Veteran's right and left shoulder, lumbar spine, left knee, and right foot disabilities. See Barr, supra; Stegall, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, forward the claims file to an appropriately qualified VA examiner who is a physician (M.D.) whose practice areas include or have included ORTHOPEDIC MEDICINE. The record and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Provide a retrospective opinion as to the range of motion findings of the Veteran's bilateral shoulders, lumbar spine, left knee, and right foot disabilities, as reflected in the August 2010 and October 2012 VA examination reports, as well as the August 2015 VA foot conditions DBQ form completed by non-VA physician D.B., and all other relevant symptomatology of the aforementioned disorders pursuant to the applicable rating criteria. (b) Provide a retrospective opinion as to functional impairment due to such factors in terms of any additional degrees of limitation of motion, including impact on performing work or worklike tasks, for pain on passive motion, weight-bearing, and nonweight-bearing and, to the extent possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Of note, the Veteran's statements include - "I can't put pressure on the knees with body weight." During the September 2012 VA shoulders examination, the Veteran said he was "Unable to do any work above shoulder level around home." (c) Provide an opinion as to the range of motion findings, expressed in degrees, during repetitive use and during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). *The examiner shall consider the Veteran's lay statements of record pertaining to symptomatology relevant to his shoulders, lumbar spine, left knee, and right foot disabilities, to include the Veteran's lay descriptions of functional loss and limitation of motion reflected in the August 2010 and October 2012 VA examination reports, as well as the August 2015 VA foot conditions DBQ form completed by non-VA physician D.B. The examiner must provide a complete rationale for all opinions proffered. If the examiner cannot provide such opinions, he or she must make clear that he or she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran) but that any member of the medical community at large could not provide such an opinion without resorting to speculation, and include a discussion of specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). *The examiner's review of the body of this Remand is recommended to assist in avoiding errors that rendered the January 2021 VA opinions inadequate. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.