Citation Nr: 22011850 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-26 488 DATE: March 2, 2022 REMANDED Entitlement to a rating in excess of 30 percent for degenerative joint disease of the right shoulder with chronic peritendinitis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty from August 1966 to July 1968. He was a member of the Puerto Rico National Guard from October 1974 to April 1987, during which time he had periods of active duty for training and inactive duty training. In January 2018, the Board, in pertinent part, denied a rating in excess of 30 percent for a right shoulder disability. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2018 Memorandum Decision, the Court partially vacated and remanded the portion of the January 2018 Board decision which denied a rating in excess of 30 percent for a right shoulder disability and remanded the matter for readjudication. The Court additionally determined that the Board failed to consider the matter of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Following the November 2018 Memorandum Decision, the Board remanded the Veteran's issue in June 2019 for a new VA examination. The Veteran was provided with a VA examination in September 2019. However, a February 2021 Board decision remanded the Veteran's issue for another VA examination as the September 2019 VA examination was inadequate and failed to compile with the June 2019 remand directives. See February 2021 Board decision (noting the September 2019 VA examination was inadequate because the examiner failed to address range of motion in passive motion or with nonweight-bearing). Subsequently, the Veteran was afforded another VA examination in April 2021. In July 2021, the Board remanded the Veteran's issue again to obtain another VA examination as the April 2021 VA examination was inadequate for adjudication purposes because the VA examiner did not indicate in the examination report the degree at which pain occurred. However, as set forth more fully below, because the August 2021 VA examination and October 2021 VA medical addendum opinion lack the necessary adequacy for adjudication, substantial compliance with the Board's July 2021 remand directives has not yet occurred; accordingly, the Veteran's claim for a rating in excess of 30 percent for a right shoulder disability and entitlement to a TDIU must unfortunately be remanded again for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 30 percent for a right shoulder disability. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As an initial matter, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that his right shoulder disability warrants a rating in excess of 30 percent. This issue was previously remanded in July 2021 for a VA medical examination regarding the Veteran's right shoulder disability. The July 2021 Board remand directives indicated that the VA examiner should: (1) report all ranges of motion of the right shoulder and the degree at which pain begins per DeLuca; (2) pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for both shoulders; and (3) pursuant to Sharp v. Shulkin, provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. In August 2021, the Veteran was afforded a new VA examination for his right shoulder disability pursuant to the July 2021 Board remand. The Veteran reported constant right shoulder pain, rated at 10/10, which limits his sleeping and dressing-up activities. The Veteran did not report flare-ups of the shoulder and/or arms. Active range of motion measurements were reported as abnormal/outside of normal range. Range of motion testing showed flexion to 90 degrees, abduction to 90 degrees, external rotation to 60 degrees and internal rotation to 45 degrees. Pain was reported for all four range of motion measurements. Additionally, passive range of motion measurements were conducted and showed flexion to 90 degrees, abduction to 90 degrees, external rotation to 60 degrees and internal rotation to 45 degrees. Pain was also reported for all four range of motion measurements. Further, there was evidence of pain with weight bearing, which applied to active and passive range of motion as well as causing functional loss. In October 2021, a VA medical addendum opinion was provided in response to the August 2021 VA examination. The opinion was provided by the same VA examiner who conducted the August 2021 VA examination. The VA examiner indicated that the Veteran had pain that started and immediately stopped during the range of motion exam at the following ranges (same for passive and active exam): flexion endpoint (180 degrees): 90 degrees (pain began and stopped); abduction endpoint (180 degrees): 90 degrees (pain began and stopped) internal rotation endpoint (90 degrees): 60 degrees (pain began and stopped); and external rotation endpoint (90 degrees): 45 degrees (pain began and stopped). The Board finds the August 2021 VA medical examination inadequate for adjudication purposes. The VA examiner indicated that there was evidence of pain with weight-bearing on active and passive motion but did not provide range of motion testing for weight-bearing and nonweight-bearing for both shoulders, as instructed by the July 2021 Board remand decision. In Correia v. McDonald, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing." Correia v. McDonald, 28 Vet. App. 158 (2016). The Board notes that while much of the VA examination report is adequate and in compliance with governing legal criteria, the examination report does not contain passive range of motion measurements pursuant to the directives in Correia, supra. Thus, a remand is needed for a new VA examination with more thorough findings in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint). The examiner should also ensure continued compliance with the guidance in Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). Although the Board sincerely regrets the additional delay, another remand is necessary to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to a TDIU. The Veteran does not currently meet the schedular criteria for a TDIU. However, the issue of entitlement to an increased rating for a right shoulder disability is being remanded. As such, there is potential for the Veteran's disability ratings to change. Therefore, the TDIU issue is inextricably intertwined with the remaining issues on appeal. See Harris v. Derwinski,1 Vet. App. 180, 183(1991). Thus, adjudication of the TDIU issue must be deferred pending the development requested on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of the Veteran's right shoulder disability. The VA examiner must: Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If such testing cannot be performed the examiner must provide the reasons why such testing cannot be performed. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right shoulder disability alone and discuss the effect of the Veteran's right shoulder disability on any occupational functioning and activities of daily living If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, 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). A thorough rationale should be provided for all opinions expressed, including discussion of the facts of this case and any medical studies or literature relied upon. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.