Citation Nr: 22006167 Decision Date: 02/03/22 Archive Date: 02/03/22 DOCKET NO. 11-00 201A DATE: February 3, 2022 REMANDED Entitlement to a rating in excess of 20 percent for service-connected right shoulder disability prior to October 21, 2016, is remanded. Entitlement to a rating in excess of 30 percent for service-connected right shoulder disability from October 21, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1996 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, the Veteran and his spouse testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2020, the Board denied entitlement to a disability rating for the right shoulder disability in excess of 20 percent prior to October 21, 2016 and in excess of 30 percent from October 31, 2019; and granted a rating of 30 percent, but no higher, for the right shoulder from October 21, 2016. The Veteran appealed the Board's decision denying a higher rating for the right shoulder disability to the United States Court of Appeals for Veterans Claim (Court). In September 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated the portion of the Board's decision that denied a rating for the right shoulder disability in excess of 20 percent prior to October 21, 2016 and in excess of 30 percent thereafter, and returned the matter to the Board for actions consistent with the Joint Motion. The parties determined that the Board's decision to grant a 30 percent rating for the right shoulder disability, effective October 21, 2016, is a favorable finding that should not be disturbed. 1.-2. Entitlement to a disability rating for the right shoulder disability in excess of 20 percent prior to October 21, 2016, and in excess of 30 percent thereafter In the September 2020 Joint Motion, the parties agreed that the Board erred when it failed to ensure the duty to assist was satisfied and provide an adequate reasons or bases for its decision. The parties noted that the January 2012, October 2016 and September 2017 VA examinations did not conduct active or passive motion testing, as required under Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The parties agreed that the Board failed to address whether this noncompliance was an issue, whether there was sufficient information from which to adjudicate the claims, or whether a retrospective medical opinion is necessary and feasible. The parties further agreed that the Board failed to address whether the March 2009, October 2016 and September 2017 VA examinations were adequate in light of the fact that the VA examiner (same for all three examinations) failed to (1) opine on the degree of additional range-of-motion loss due to pain, weakness, fatigability, or incoordination during flare-ups and/or with repetitive use over time; and (2) properly explain whether the examiner could feasibly provide such estimates. In order to adequately address the concerns raised in the Joint Motion, the Board finds that remand to obtain a retrospective medical opinion is needed. Updated treatment records should also be requested. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed right shoulder disability. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records since March 2020. If any requested records are unavailable, the Veteran should be notified of such. 2. After completing the above development to the extent possible, obtain an addendum opinion from an appropriate VA examiner regarding the claimed right shoulder disability. If a new examination is deemed necessary, one should be scheduled. After reviewing the claims file, the examiner should provide a retrospective medical opinion as to the nature and severity of the Veteran's right shoulder disability since January 2009, to include providing estimated ranges of motion of the right shoulder with active motion and passive motion, and during flare ups. The examiner should also opine whether the Veteran had pain in weight-bearing, and nonweight-bearing, and whether pain, weakness, fatigability or incoordination significantly limited functional ability after repetitive use over time or during flare-ups. The examiner should describe the estimated ranges of motion and range of motion loss in degrees, if possible. The examiner should offer his or her opinion based on estimates derived from information procured from relevant sources within the claims file, including March 2009, January 2012, October 2016 and September 2017 VA examination reports; VA treatment records, and lay statements. A complete rationale should be provided for all opinions and conclusions expressed. If it is not possible to provide the requested retrospective opinion, 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). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.