Citation Nr: 22013574 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 10-08 455 DATE: March 10, 2022 REMANDED Entitlement to an initial disability rating for right shoulder injury residuals (non-dominant) in excess of 30 percent for the appeal period prior to June 26, 2017, is remanded. Entitlement to an initial disability rating for right shoulder injury residuals (non-dominant) in excess of 20 percent from June 26, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1994 to December 1994 and from May 2003 to December 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2017 decision, the Board denied the Veteran's increased rating claims for his right shoulder injury residuals. The Veteran subsequently appealed that denial to the United States Court of Appeals for Veterans Claims (Court) and in a November 2018 Order, the Court granted the parties' (the Veteran and the Secretary of VA) Joint Motion for Partial Remand (JMPR), which, in pertinent part, vacated and remanded the December 2017 denials for initial increased ratings for the Veteran's right shoulder injury residuals. In September 2021, the Board last remanded these matters to the RO for further development. Entitlement to initial disability ratings for right shoulder injury residuals (non-dominant) Although the Board sincerely regrets the additional delay, a remand is again warranted as there has not been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). In this regard, the October 2020, May 2021, and September 2021 Board remand instructions have all requested that a VA examiner describe the severity of the Veteran's service-connected right shoulder injury residuals disability throughout the appeal period and estimate, to the extent possible, range of motion measurements and range of motion loss during flare ups or after repeated use over time since the day following the Veteran's separation from service. The instructions also stated that if it is not feasible for the VA examiner to provide such estimates, the examiner must provide an explanation for the inability to do so. Although, the Veteran underwent another VA shoulder examination in November 2021 that included range of motion testing and current findings concerning any functional impairment during flare-ups and after repeated use over time, the November 2021 retrospective opinion is inadequate. Specifically, the November 2021 VA examiner did not provide any estimates for range of motion measurements for the requested appeal period and, without further explanation, stated that he would be resorting to mere speculation to provide these estimates and that he was unable to comment on the severity of the 2017 examination since he did not perform that examination. The Board notes that the Veteran did not undergo a VA examination in 2017. Unfortunately, given that the November 2021 VA examiner did not comply with the prior Board remand directives in either providing the requested range of motion measurement estimates or in proving an adequate explanation for his failure and/or inability to do so, a remand is again warranted to obtain a VA retrospective opinion that complies with the prior Board remand directives. The matters are REMANDED for the following action: 1. Arrange for an appropriate clinician, other than the November 2021 VA examiner, to provide an addendum RETROSPECTIVE opinion concerning the severity of the Veteran's service-connected right shoulder injury residuals since the day following his separation from service. The Veteran's claims file, to include a copy of this Remand, must be made available to, and be thoroughly reviewed by, the VA clinician. The VA clinician is asked to respond to the following after reviewing the relevant evidence of record, to include the Veteran's lay statements and the other evidence of record regarding functional impairment and functional impairment during a flare-up and after repeated use over time: (a) Discuss the nature and severity of the Veteran's right shoulder injury residuals throughout the period on appeal (i.e., from December 7, 2005), to include whether pain, weakness, fatigability, or incoordination caused additional functional impairment during flare-ups and after repeated use. (b) Provide a retrospective opinion ESTIMATING the range of motion in active motion, passive motion, weight-bearing, and non-weight bearing based on the evidence of record since the day following his separation from active service (i.e., from December 7, 2005). In making this determination, the VA clinician should consider whether these findings can be estimated for/based upon any of the VA examinations and Veteran's descriptions therein conducted during the appeal period. See e.g., March 2006, January 2008, August 2012, September 2013, April 2016, January 2020, March 2021, June 2021, and November 2021 VA examinations. (c) Provide a retrospective opinion ESTIMATING the degree of additional functional loss in terms of range of motion during flare-ups since the day following his separation from active service (i.e., from December 7, 2005). In making this determination, the VA clinician should consider whether these findings can be estimated for/based upon any of the VA examinations and Veteran's descriptions therein conducted during the appeal period. See e.g., March 2006, January 2008, August 2012, September 2013, April 2016, January 2020, March 2021, June 2021, and November 2021 VA examinations. (d) Provide a retrospective opinion ESTIMATING the degree of additional functional loss in terms of range of motion after repeated use over time since the day following his separation from active service (i.e., from December 7, 2005). In making this determination, the VA clinician should consider whether these findings can be estimated for/based upon any of the VA examinations and Veteran's descriptions therein conducted during the appeal period. See e.g., March 2006, January 2008, August 2012, September 2013, April 2016, January 2020, March 2021, June 2021, and November 2021 VA examinations. A complete and fully explanatory rationale must be provided for all opinions offered. As the opinion the clinician must provide is a retrospective opinion, the clinician will necessarily be unable to observe the Veteran during a flare-up or after repeated use over time. Nonetheless, to the extent possible, the clinician should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of flares/repeated use severity, frequency, duration, and/or functional loss manifestations. The examiner should consider the lay descriptions in formulating the opinion. If the examiner cannot address any question posed by this Remand or is unable to provide a retrospective opinion as to these specific range of motion findings, the clinician MUST CLEARLY EXPLAIN WHY that is so and provide a reasoned explanation for that determination. In this regard, if an opinion cannot be provided without resorting to mere speculation, the clinician must clearly explain whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts or by a deficiency in the record or the clinician, i.e., additional facts are required, or the clinician does not have the needed knowledge or training. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing clinician for corrective action. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.