Citation Nr: 22014248 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-10 387 DATE: March 11, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent for a left shoulder disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1971 to October 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA). The February 2013 rating decision increased the Veteran's noncompensable disability rating to 10 percent disabling, effective December 17, 2012. The Veteran submitted a March 2013 notice of disagreement (NOD) with the February 2013 rating decision, seeking a higher rating. The AOJ issued a March 2015 statement of the case (SOC) denying a higher rating for the Veteran's left shoulder disability. The Veteran responded later in the month with a VA Form 9, seeking appeal of the issue to the Board. In November 2018, the Board remanded the claim for additional development. In March 2020, VBA issued a rating decision increasing the Veteran's disability rating from 10 percent to 20 percent, effective December 17, 2012. VBA subsequently issued a May 2020 supplemental statement of the case denying a rating in excess of 20 percent. In April 2021, the Board remanded the issues an increased disability rating, in excess of 20 percent, for left shoulder disability and entitlement to TDIU, seeking additional development. The matters have returned to the Board for appellate consideration. In November 2018 and April 2021, the present claims were remanded for further evidentiary development and readjudication. The Veteran is entitled to substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The Board finds that the AOJ has not substantially complied with the prior remand directives. The April 2021 Board Remand sought a new VA examination of the Veteran's left shoulder disability. Specifically, the Board requested the Veteran's range of motion during active, passive, weight-bearing, and non-weight-bearing movement be measured. The Veteran was afforded a VA examination in November 2021. The examiner provided range of motion measurements and estimates for the Veteran's shoulders during active and passive motion, but no measurements were provided as to the Veteran's performance under weight-bearing and non-weight bearing conditions. The only information provided regarding the Veteran's weight-bearing and non-weight bearing was with respect to pain. As such, the Board finds that a Remand is warranted. As to the claim for TDIU, the Board finds that it is inextricably intertwined with the claim for an increased rating for a left shoulder disability. Therefore, the Board finds that it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes, in the February 2022 brief, the Veteran's representative wished to obtain the curriculum vitae of the examiner who performed the November 2021 examination. Such documentation should be obtained and provided. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file, the curriculum vitae (CV) of the medical examiner who prepared the VA compensation report in November 2021. If the CV cannot be obtained and made available for review in the claims file, this fact should be clearly documented in the claims file, along with any explanation of the reasons for the unavailability. 2. Schedule the Veteran for a VA examination with an appropriate clinician to assess the severity of a left shoulder disability. The examiner must review the claims file and should note that review in the report. The examiner must determine the current severity of the left shoulder disability, and the impact of that disability on the Veteran's daily activities and ability to work. In assessing the left shoulder disability, the examiner should: (a.) Test the range of motion for both shoulders during (1) active motion, (2) passive motion, (3) weight-bearing, and (4) non-weight-bearing. If the examiner finds that range of motion testing is not possible or is inappropriate, the examiner must state that and provide a detailed explanation for that finding. (b.) Indicate whether a left shoulder disability is productive of any additional functional loss due to weakened movement, fatigability, incoordination, painful motion, or excess motion and provide an opinion as to how those factors result in any additional limitation of motion or additional functional loss. (c.) Discuss any additional limited motion or increased functional loss after repeated use and during flareups. (d.) For the left shoulder, state whether there is ankylosis, malunion or nonunion of the humerus head, recurrent dislocation, or impairment of the clavicle or scapula. (e.) Opine whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected left shoulder disability. If the Veteran is felt capable of work despite the service-connected disability, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disability. All opinions must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. (Continued on the next page) If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.