Citation Nr: 22008992 Decision Date: 02/16/22 Archive Date: 02/16/22 DOCKET NO. 15-20 197 DATE: February 16, 2022 REMANDED Entitlement to a rating in excess of 20 percent for recurrent instability and dislocation of the right shoulder, status post arthroscopy (exclusive of a period of temporary total rating from September 4, 2013 to October 31, 2013), is remanded. Entitlement to a compensable rating for peripheral axillary nerve injury is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2010 to June 2012. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A May 2019 Board decision denied a rating in excess of 20 percent for a right shoulder disability. In September 2020, the U.S. Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the appeal for compliance with a joint motion for remand (JMR). An August 2021 Board decision remanded the matter of entitlement to a rating in excess of 20 percent for the right shoulder (exclusive of the period of temporary total) and found that the August 2012 rating decision was not final and that the period under consideration is from June 30, 2012, the day after discharge from active duty. With respect to the above claim for an increased rating for the service-connected peripheral axillary nerve injury, the neurological manifestations of the service-connected right shoulder disability may be considered part of the Veteran's claim. Accordingly, this decision undertakes consideration of the Veteran's increased rating claim of the peripheral axillary nerve injury as part of this appeal. 1. Entitlement to a rating in excess of 20 percent for recurrent instability and dislocation of the right shoulder, status post arthroscopy (exclusive of a period of temporary total rating from September 4, 2013 to October 31, 2013) The Board finds that there has not been substantial compliance with previous remand directives, and that corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2021 Board remand ordered an examination of the Veteran that included testing for pain on active and passive motion, in weight bearing and non-weight bearing, and to elicit information regarding functional loss during flare-ups and repeated use over time (including information on range of motion). On September 2021 examination, active and passive range of motion testing were completed. The clinician noted that the Veteran was unable to perform repetitive use testing due to pain. The clinician did not opine as to range of motion in degrees after repeated use over time. The clinician noted flare-ups resulted in additional pain, fatigability, and weakness. The Veteran reported additional functional loss that he experienced during a flare-up. However, the clinician estimated that external rotation range of motion during flare-ups was greater than what was shown on examination when a flare-up was not occurring. The examiner noted that during flare-ups the Veteran reported nausea and the use of a sling but did not indicate how that might reflect on any additional loss of range of motion and loss of function. Accordingly, a new medical examination which more adequately considers the Veteran's lay statements concerning his impairment during flare-ups is necessary. See Miller v. Wilkie, No. 16-3046, 2019 U.S. App. Vet. Claims LEXIS 923. 2. Entitlement to a compensable rating for peripheral axillary nerve injury The Veteran is service connected for a peripheral axillary nerve injury secondary to his service-connected right shoulder disability. It is therefore (as noted above) part of the Veteran's right shoulder increased rating claim. Throughout the pendency of this appeal the Veteran has testified and provided statements supporting his claim that his grip strength has worsened and he has radiating pain as a result of this disability. The manifestations of decreased grip strength are not well contemplated by the rating criteria for the Veteran's service-connected right shoulder. Accordingly, separate consideration of this disability is warranted and an examination to assess the severity of the peripheral axillary nerve injury is necessary. The matters are REMANDED for the following action: 1. Arrange for development to secure for the record up to date (since October 2020) clinical records of the Veteran's VA treatment records. If such records are unavailable, it must be noted in the record, with explanation, and the Veteran should be so notified. 2. Arrange for an orthopedic examination of the Veteran to assess the severity of his right shoulder disability. The Veteran's record must be reviewed by the examiner in conjunction with the examination. All indicated studies must be completed and must include range of motion studies (with notation of any additional functional limitations due to factors such as weakness, pain, incoordination, flare-ups with nausea and fatigue and need for a sling). All pertinent findings and related functional limitations must be described in detail. 3. Arrange for a neurological examination of the Veteran to assess the severity of the service-connected peripheral axillary nerve injury. The Veteran's record (including this remand, and the Veteran's hearing testimony) must be reviewed by the examiner in conjunction with the examination. The examiner should provide opinions that respond to the following: Describe all symptoms of, and impairment due to, peripheral axillary nerve injury, to include the nature and degree of symptoms (whether consistent with mild, moderate, or severe). Additionally, comment on the expected impact of the disability on the Veteran's ability to maintain employment. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.