Citation Nr: 22006356 Decision Date: 02/03/22 Archive Date: 02/03/22 DOCKET NO. 14-32 176A DATE: February 3, 2022 REMANDED Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2000 to November 2000 and from October 2001 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This matter was previously before the Board in September 2020, May 2021, and most recently in October 2021. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to a rating in excess of 20 percent for a left shoulder disability The Veteran contends that his service-connected left shoulder disability warrants a higher evaluation than that as currently assigned. As directed by the September 2020 Board decision, the Veteran was afforded a new VA examination for his left shoulder disability in November 2020. The Board notes that the United States Court of Appeals for Veterans Claims (Court) issued a decision which mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the shoulder as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing. Id.; see also 38 C.F.R. § 4.59. A review of the record evidence shows that the Veteran's most recent VA examination in November 2020 for his left shoulder condition did not comply with Correia. For example, the VA examiner provided range of motion for active, passive, and weightbearing ranges of motion, but did not provide range of motion on non-weightbearing, even though she noted there was pain with non-weightbearing. It was not clear as to why the examiner did not provide ranges of motion on non-weightbearing, as the examiner did not indicate that non-weightbearing range of motion could not be performed or why it was not medically appropriate. Furthermore, for all ranges of motion, the VA examiner did not report the range of motion at which pain began. The September 2020 Board remand instructions specifically requested that the examiner include the Veteran's range of motion in active motive, passive motion, weightbearing, and non-weightbearing and if pain on motion is observed, the examiner should state the point at which pain begins. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. 2. Entitlement to a TDIU The issue of entitlement to a TDIU is inextricably intertwined with the left shoulder issue being remanded herein, and thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Moreover, the Veteran's work history from March 2019 is unclear. It appears the Veteran left work for a few months and has returned to his employment in May 2019. See May 2019 VA treatment record. An August 2020 VA treatment record noted that the Veteran works as an inspector of an aircraft company. Upon remand, the RO should undertake additional development, to include obtaining clarification from the Veteran regarding his employment information. The matters are REMANDED for the following action: 1. Obtain VA treatment records from July 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. Request that the Veteran provide information of his work history and earned income from March 2019 to present. If he was not employed during this time, he must clearly state so. The RO should request another VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, from the Veteran if it finds it necessary to do so. 3. After completion of the above, obtain an addendum opinion from the provider who conducted the November 2020 examination for the Veteran's left shoulder disability (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: The examiner is asked to provide a retrospective opinion concerning the November 2020 examination. To the examiner's best ability, the additional range of motion lost should be described in degrees based on the information noted in the VA examinations, pertinent lay statements, VA treatment records, and private treatment records in the Veteran's claim file. (a) Provide range of motion measurements for the Veteran's left shoulder disability in non-weightbearing. If this cannot be provided, the examiner should explain why. The examiner should record the range of motion of the in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. (b) The examiner must also provide the point at which pain begins with active and passive motion and in weightbearing. If providing any opinions are not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she 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. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.