Citation Nr: 22015588 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-08 498 DATE: March 18, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent for a right shoulder disability prior to March 30, 2020, and in excess of 30 percent rating thereafter is remanded. Entitlement to service connection for a right arm neurological condition, to include as secondary to service-connected right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision, which granted service connection for right shoulder sprain and assigned a 10 percent rating. The Veteran filed a Notice of Disagreement (NOD) in March 2016. A December 2016 rating decision assigned a 20 percent rating since the grant of service connection for right shoulder sprain. The Board of Veterans' Appeals (Board) initially denied the claim for a rating in excess of 20 percent in January 2019. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2019 Order granting a Joint Motion for Remand (JMR), the Court vacated the January 2019 Board decision. The parties agreed that the Board relied upon the February 2015 and November 2016 VA examination reports which provided an inadequate discussion of additional limitations during flare-ups or repeated use pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017) and failed to provide range of motion results that complied with Correia v. McDonald, 28 Vet. App. 158 (2016). See October 2019 JMR. The Board remanded the right shoulder claim in March 2020 in order to comply with the October 2019 JMR. Consequently, VA obtained an examination in March 2020, and granted a 30 percent rating for the Veteran's right shoulder disability effective, March 30, 2020, the date of the VA examination. In a September 2020 decision, the Board denied an initial rating in excess of 20 percent prior to March 30, 2020, and a rating in excess thereafter. The Veteran appealed the September 2020 Board decision to the Court. Pursuant to an October 2021 order granting a JMR, the Court vacated the Board's decision and remanded the claim to the Board for action consistent with the terms of the JMR. The Board observes that the Veteran complained on numbness of his right arm related to his right shoulder disability during the November 2016 and March 2020 VA examinations. As an initial matter, the Board notes that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim for the primary disability. See 38 C.F.R. § 3.160; Bailey v. Wilkie, 33 Vet. App. 188 (2021); Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). As such, the Board has jurisdiction of the claim for entitlement to service connection for a neurological condition reported as right arm numbness as secondary to his service-connected right shoulder disability and has captioned the claim above. 1. Right Shoulder Disability Upon review, the Board finds a remand is necessary to ensure compliance with the October 2021 JMR in order to obtain a retrospective medical opinion prior to March 30, 2020, regarding the severity of the Veteran's service-connected right shoulder disability. In the October 2021 JMR, the parties agreed in the JMR that the Board relied on VA treatment records from May 2016, June 2016, and August 2018 which were inadequate for rating purposes. See October 2021 JMR. Specifically, the parties stated "these records did not provide an opinion regarding additional functional loss during a flare-up or after repeated use and did not include the required testing required by 38. U.S.S. § 4.59." Id. The parties indicated that it was unclear whether the March 2020 VA examination report "provided enough information to decide Appellant's entitlement to a rating higher than 20% prior to March 30, 2020." Id. In the September 2020 decision, the Board addressed VA treatment records from May 2016, June 2016, and February 2017 related to his right shoulder disability. However, as noted in the October 2021 JMR, these records did not provide discussion of additional limitations during flare-ups or repeated use pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017) and failed to provide range of motion results that comply with Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the March 2020 VA examination report did not provide a retrospective opinion regarding the severity of his service-connected right shoulder disability that complied with Correia and Sharp. See March 2020 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). Accordingly, the Board finds the record does not contain sufficient evidence to decide the claim. During the March 2020 VA examination, the Veteran reported that he has excruciating pain when he tries to move his shoulder backwards or raises it up to the side and that he has difficulty performing activities that require such movements. See March 2020 VA Shoulder and Arm Conditions DBQ. This evidence suggests that the Veteran may experience the functional equivalent of ankylosis, on remand the examiner should address whether the Veteran's symptoms resulted in the functional equivalent of ankylosis during a flare-up. See Chavis v. McDonough, 34 Vet. App. 1, 11 (2021) (holding that evidence of functional equivalent of ankylosis during a flare-up requires consideration of rating factors in 38 C.F.R. §§ 4.40 and 4.45.) Thus, for the foregoing reasons, the Board finds a remand is required for a retrospective opinion to assess the Veteran's right shoulder disability which provides the necessary information required by Correia and Sharp in order to ensure compliance with the October 2021 JMR. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). 2. Neurological Impairment of Right arm The Board finds a remand is warranted to obtain a medical opinion regarding the Veteran's compliant of right arm numbness as there is insufficient evidence to decide the claim. As previously noted, the Veteran complained on numbness of his right arm related to his right shoulder disability during the November 2016 and March 2020 VA examinations. The Board finds the issue of service connection for a neurological condition of the right arm as secondary to his service-connected right shoulder disability has been raised. However, the record as it stands does not have sufficient information to decide the claim including a current diagnosis and nexus. As such, on remand, a medical opinion should be obtained to determine any neurological diagnoses the Veteran may have and whether they are proximately due to his service-connected right shoulder disability. Morgan v. Wilkie, 31 Vet. App. 162 (2019) (explaining that VA's duty to maximize benefits may require it to consider secondary service connection as part of an increased rating claim); see also, Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc). Accordingly, the claim is remanded to determine the nature and etiology of the Veteran's claimed numbness in his right arm. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who conducted the March 2020 VA examination, if available. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the March 2020 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinions. Right Shoulder Disability 2. Conduct an examination of the Veteran's right shoulder disability and identify the nature and severity of all current manifestations of the Veteran's right shoulder disability. 3. The examiner is requested to review the February 2015 and November 2016 VA examination reports as well as medical evidence prior to March 30, 2020, to include VA treatment records from May 2016, June 2016, and February 2017 pertinent to the Veteran's right shoulder disability and provide A RETROSPECTIVE OPINION as follows: 4. Report all signs and symptoms necessary for evaluating the Veteran's right shoulder disability under the applicable rating criteria for the period from August 12, 2013, to March 29, 2020. 5. Pursuant to Correia, the VA examiner should provide a RETROSPECTIVE OPINION for the period from August 12, 2013, to March 29, 2020, to include complete range of motion findings for the right shoulder. Specifically, the examiner must provide range of motion results for the Veteran's active motion, passive motion, as well as ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing. 6. Pursuant to Sharp, the VA examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups and should provide a RETROSPECTIVE OPINION for the period from August 12, 2013, to March 29, 2020, regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should also name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. THE EXAMINER SHOULD DESCRIBE THE ADDITIONAL LOSS IN DEGREES, if possible. 7. The examiner should offer his or her opinion based on estimates derived from information procured from relevant sources within the claims file, including the Veteran's statements, VA examination reports, and treatment records. IF THE REQUESTED RETROSPECTIVE OPINION REGARDING ADDITIONAL LOSS IN DEGREES OF MOTION CANNOT BE PROVIDED WITHOUT RESORTING TO SPECULATION, THE EXAMINER SHOULD EXPLAIN WHY. The examiner should offer his or her opinion based on estimates derived from information procured from relevant sources within the claims file, including the Veteran's statements, VA examination reports, and treatment records. IF THE REQUESTED RETROSPECTIVE OPINION REGARDING ADDITIONAL LOSS IN DEGREES OF MOTION CANNOT BE PROVIDED WITHOUT RESORTING TO SPECULATION, THE EXAMINER SHOULD EXPLAIN WHY. IF THE EXAMINER IS UNABLE TO PROVIDE A RETROSPECIVE OPINION IN TERMS OF RANGE OF MOTION, S/HE SHOULD STATE WHY AND PROVIDE A REASONED EXPLANATION FOR THE DETERMINATION. 8. If ankylosis is not found, the examiner should opine as to whether the Veteran's range of motion is so diminished as a result of pain so that it is the functional equivalent of ankylosis, the examiner should also determine whether the Veteran's additional impairment on flare-ups or repetitive use is the functional equivalent of ankylosis of the shoulder. Neurological Condition 9. Schedule the Veteran for an appropriate VA examination to determine if the Veteran suffers from neurological symptoms and/or a neurological disability that is due to or a manifestation of his right shoulder disability. The examiner is asked to provide the following opinions regarding the Veteran's complaints of right arm numbness. 10. Identify the Veteran's diagnosis related to complaint of right arm numbness. If there is no confirmed diagnosis, determine if the Veteran's right arm numbness results in functional impairment. 11. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a neurological condition had its onset during, or is otherwise related to, his active-duty service. 12. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the neurological condition was caused by his service-connected right shoulder disability. 13. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the neurological condition underwent an incremental increase (aggravated) due to his service-connected his service-connected right shoulder disability. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 14. 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 EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.