Citation Nr: 22015129 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 11-13 963 DATE: March 16, 2022 REMANDED Entitlement to a rating in excess of 20 percent for right shoulder tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army National Guard from October 2000 to November 2000. This matter is before the Board of Veteran's Appeals (Board) on appeal of a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran presented testimony at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In a December 2020 letter, the Veteran was informed that he had the right to request another optional Board hearing by another VLJ who would decide his case. He did not respond to that letter and it was not returned as undeliverable. Consequently, the Board proceeded with adjudication of these issues. As to procedural history, in August 2017, the Board first remanded this matter. In a subsequent March 2019 decision, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the March 2019 Board decision, and remanded the case back to the Board for compliance with directives specified in the JMR. Subsequently, in July 2020, February 2021, and November 2021, the Board remanded this matter. In the January 2020 JMR, the parties agreed that the November 2017 VA examination was inadequate for adjudication purposes. Specifically, at the Veteran's November 2017 VA examination, the Veteran reported flareups, but the VA examiner did not describe the Veteran's flareups in terms of range of motion (ROM). Further, the November 2017 VA examiner found that there was additional functional loss on ROM after three repetitions, but then reported ROM results greater than the initial ROM results. In light of the January 2020 JMR and the inadequate November 2017 VA examination, the claim was remanded by the Board in July 2020 and February 2021 in order to obtain a retrospective medical opinion concerning the additional degrees of limited motion of the right shoulder experienced during flareups at the November 2017 VA examination. In accordance with the July 2020 and February 2021 Board remand directives, VA examinations and medical opinions were provided in August 2020, March 2021, May 2021, July 2021. However, the November 2021 Board remand determined that these VA examinations were inadequate. Accordingly, another VA examination was obtained in December 2021. Unfortunately, the Board finds that the December 2021 VA examination is also inadequate for adjudication purposes. The December 2021 VA examiner diagnosed right shoulder tendonitis, measured active and passive ROM, and estimated ROM during repetitive use over time and during flareups at the time of the examination in December 2021. However, the examiner did not provide a retrospective medical opinion concerning the additional degrees of limited motion of the right shoulder experienced during flareups at the November 2017 VA examination in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The December 2021 VA examiner also did not provide an estimate of the range of motion on repetitive use at the November 2017 VA examination in accordance with the November 2021 Board remand directives. As such, the Board finds that there was not substantial compliance with the November 2021 Board remand directives. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). As the Board finds that there has not been substantial compliance with the prior November 2021 Board remand directives, the Board must remand the matter again for a VA addendum opinion, to specifically include a retrospective medical opinion concerning the additional degrees of limited motion of the right shoulder experienced during flareups and on repetitive use at the time of the November 2017 VA examination. In addition, the Board notes that the rating criteria for a shoulder disability under 38 C.F.R. § 4.71a, Disability Code 5201 was amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (February 7, 2021) (codified at 38 C.F.R. § 4.71a). The revised criteria define "midway between side and shoulder level" as flexion and/or abduction limited to 45 degrees. The revised criteria define "at shoulder level" as flexion and/or abduction limited to 90 degrees. In readjudicating this claim, the RO must consider this new rating criteria for the period since February 7, 2021. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. The matters are REMANDED for the following action: Send the Veteran's claims file to an appropriate VA clinician for the purpose of obtaining a retrospective opinion regarding ROM of the Veteran's right shoulder in November 2017. The entire claims file, including a copy of this Remand, must be made available to, and must be reviewed by the clinician. If the clinician determines that a physical examination is necessary, one should be provided. At the November 2017 VA examination, the examiner did not estimate functional limitations due to flare-ups and repetitive use in terms of additional degrees of limitation of motion. The examiner must retrospectively estimate functional limitations due to flare-ups and after repetitive use in terms of additional degrees of limitation at the time of the November 2017 VA examination. The examiner should specifically describe the severity, frequency, and duration of any flare-ups; name the precipitating and alleviating factors, and estimate, per the Veteran, to what extent, if any, such flare-ups or repetitive use affect functional impairment. The examiner must provide the estimated range of motion during flareups and on repetitive use testing in degrees. If the examiner is unable to retrospectively estimate functional loss in terms of degrees after reviewing the November 2017 examination report and directly eliciting information from the Veteran, this should be so stated, along with a supporting rationale why such details cannot be feasibly provided. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.