Citation Nr: 22015258 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 09-17 239 DATE: March 16, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent for right shoulder impingement syndrome is remanded. Entitlement to an initial rating in excess of 20 percent for left shoulder pain is remanded. Entitlement to an initial rating in excess of 10 percent for right patellar femoral dysfunction is remanded. Entitlement to an initial rating in excess of 10 percent for left patellar femoral dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2003 to February 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for left and right shoulders, effective February 6, 2008. Subsequently, in May 2016, the RO increased the rating for bilateral shoulder impingement syndrome from 10 percent to 20 percent, effective April 7, 2016. A rating decision of December 2018 increased the rating to 20 percent, effective February 6, 2008. This case has been to the Board on several occasions and was most recently before the Board in September 2021, at which time it was remanded for further development, as discussed below. The Board finds that the remand directives were not substantially complied with and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial rating in excess of 20 percent for right shoulder impingement syndrome is remanded. 2. Entitlement to an initial rating in excess of 20 percent for left shoulder pain is remanded. 3. Entitlement to an initial rating in excess of 10 percent for right patellar femoral dysfunction is remanded. 4. Entitlement to an initial rating in excess of 10 percent for left patellar femoral dysfunction is remanded. A September 2021 Board decision remanded the claims for increased ratings for bilateral shoulder and bilateral knee disabilities and directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for an appropriate VA examination to assess the current severity of the aforementioned disabilities, as well as a retrospective medical opinion. Specifically, the Board noted that the May 2011 and April 2016 VA examinations indicated that pain could significantly limit functional ability during flare-ups or when the either knee or shoulder is used repeatedly over a period of time, but the examiners did not state exactly what degree of additional range of motion loss would be due to pain without resort to speculation. And, in the May 2021 examination, the Veteran did not report having flare-ups, the examiner also failed to identify functional loss during flare-ups and/or repetitive use during the entire appeal period. 09/08/2021, BVA Decision. An October 2021 VA examination regarding the Veteran's shoulder conditions assessed the severity of the Veteran's left shoulder condition but did not assess the Veteran's right shoulder condition. The examiner did not clearly indicate whether the Veteran currently experiences flare-ups, merely indicating that the Veteran was not experiencing flare-ups at the time of the examination. The examiner also did not speculate to the severity of flare-ups, having not elicited information from the Veteran regarding flare-ups. Also, the examiner did not provide an opinion as to the severity of any flare-ups throughout the appeals period. Rather, the examiner indicated that the May 2011 and April 2016 VA examinations had been reviewed but did not provide the medical opinions requested in the Remand directives. 11/11/2021, C&P Exam (shoulders). An October 2021 VA examination from the same examiner, but regarding the Veteran's knee conditions, did not clearly indicate whether the Veteran currently experiences flare-ups, again, merely indicating that the Veteran was not experiencing flare-ups at the time of the examination. The examiner also did not speculate to the severity of flare-ups, having not elicited information from the Veteran regarding flare-ups. Also, the examiner did not provide an opinion as to the severity of any flare-ups throughout the appeals period. Rather, the examiner indicated that the May 2011 and April 2016 VA examinations had been reviewed but did not provide the medical opinions requested in the Remand directives. Moreover, the examiner remarked that the Veteran's knee conditions have worsened, but also noted that the Veteran did not have any limitations in range of motion or other impairments. 11/11/2021, C&P Exam (knees). The United States Court of Appeals for Veterans Claims (Court) specifically determined in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), that if a VA examination is not being conducted during a flare-up, the examiner should nevertheless provide an opinion derived from the information obtained during the evaluation as to the additional loss of range of motion that may be present during a flare-up. Additionally, if the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), and whether any member of the medical community at large could not provide such an opinion without resorting to speculation. Id. Here, the examiner appears to have stopped short from attempting to illicit the needed information, and remand is necessary to gather more relevant evidence to assist with rating the Veteran's knee and shoulder disabilities. Specifically, the October 2021 examiner did not provide a clear explanation as to whether the Veteran experiences flare-ups. Additionally, the examiner did not provide a retrospective medical opinion regarding the severity of the knee and shoulder conditions throughout the appeals period. The Veteran's representative makes similar arguments. 01/19/2022 Appellate Brief. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran's bilateral shoulder and bilateral knee disabilities. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such record. 2. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the severity of his left and right shoulder disabilities. The examiner should review the virtual file, including a copy of this Remand. The examiner is to complete the examination report form and is requested to specifically address: (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected shoulder disability, and how he or she characterizes the additional functional loss during a flare-up. (b.) If the Veteran describes experiencing flare-ups, identify the: --frequency; --duration; --precipitating factors; and --alleviating factors. The extent, if any, of functional loss of use of the left and right shoulders due to pain, painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent-such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. Additionally, the examiner is to specifically opine on the Veteran's range of motion during flare-ups and after repetitive use for the entire appeal period. The Board calls the examiner's attention to the following: -- May 2011 VA examination wherein the Veteran reported "severe flare-ups" of his knees. -- April 2016 VA examination wherein the Veteran reported "daily flare-ups" of his knees. If the examiner is unable to provide such a retrospective opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the severity of his left and right knee disabilities. The examiner should review the virtual file, including a copy of this Remand. The examiner is to complete the examination report form and is requested to specifically address: (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected knee disability, and how he or she characterizes the additional functional loss during a flare-up. (b.) If the Veteran describes experiencing flare-ups, identify the: --frequency; --duration; --precipitating factors; and --alleviating factors. The extent, if any, of functional loss of use of the left and right knees due to pain, painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent-such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. Additionally, the examiner is to specifically opine on the Veteran's range of motion during flare-ups and after repetitive use for the entire appeal period. The Board calls the examiner's attention to the following: -- May 2011 VA examination wherein the Veteran reported "severe flare-ups" of his shoulders. -- April 2016 VA examination wherein the Veteran reported "daily flare-ups" of his shoulders. If the examiner is unable to provide such a retrospective opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.