Citation Nr: 22017977 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 16-13 615 DATE: March 27, 2022 REMANDED Entitlement to an evaluation in excess of 20 percent for right shoulder degenerative joint disease with impingement syndrome is remanded. Entitlement to an evaluation in excess of 10 percent for residuals, right ankle sprain with reconstructive surgery, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1994 to March 1998, from September 1998 to December 1999 and from October 2000 to June 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA) In August 2019, the Board denied the Veteran's claims for increased evaluations for the service-connected right shoulder disability prior to and from January 8, 2015, and for an increased rating for the service-connected right ankle disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the parties agreed to a Joint Motion for Remand (JMR). The Court vacated the Board's August 2019 decision and remanded the matters to the Board for action consistent with the JMR. Specifically, the matters were remanded because the parties agreed that the 2012, 2015, 2017 and 2018 VA shoulder and ankle examinations did not adequately address the Veteran's flare-ups in compliance with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Additionally, the parties agreed that the 2012 and 2015 VA shoulder examinations were not compliant with Correia v. McDonald, 28 Vet. App. 158 (2016), which requires that an examination evaluates pain on active range of motion, passive range of motion, weight-bearing motion and non-weight bearing motion. The parties agreed that retrospective medical opinions were needed to estimate the degree of range of motion the Veteran would have experienced if such had been tested at the time of the prior VA examinations, and to address the impact of flare-ups on functional loss of right shoulder and right ankle. The issues were remanded by the Board in February 2021, for additional development in compliance with the JMR, including new VA examinations to ascertain the current severity of the Veteran's right shoulder and right ankle disabilities and a retrospective medical opinion. The Board finds that there was not substantial compliance with its February 2021 remand orders and another remand of the issues is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The AOJ issued a rating decision in July 2021 which increased the Veteran's evaluation for right shoulder degenerative joint disease with impingement syndrome to 20 percent from April 18, 2012. As the grant of the 20 percent evaluation does not constitute a full grant of the benefits sought, the issue remains on appeal. In its February 2021 remand, in accordance with the parties' JMR, the Board directed that the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing and/or non-weight bearing could be estimated for the 2012 and 2015 VA shoulder and ankle examinations, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) and to comment on functional loss due to flare-ups of the right shoulder and right ankle, pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). The parties noted in the JMR that the VA examiner was specifically directed to obtain information regarding flare-ups of the right shoulder and right ankle, regarding severity, frequency, duration and functional loss manifestations from the Veteran, medical records and any other available resources and comment on functional loss due to flare-ups based on findings of the 2012, 2015, 2017 (shoulder) and 2018 (ankle) VA examinations and that this was not accomplished. The Veteran underwent a VA shoulder examination and a VA ankle examination in April 2021. The VA examiner did not comment on whether or not range of motion measurements for passive motion, weight-bearing, and/or non-weight bearing could be estimated for the 2012, 2015 and 2017 VA shoulder examinations, nor did the VA examiner comment on the impact flare-ups had on the Veteran's right shoulder functional ability. Similarly, no comment was offered on estimating range of motion measurement for passive motion, weight-bearing, and/or non-weight bearing of the right ankle for the 2012, 2015 and 2018 VA examinations; nor did the VA examiner discuss what impact flare-ups had on the Veteran's functional ability of her right ankle. On remand, addendum opinions should be obtained which address such. The matters are REMANDED for the following action: 1. Return the file to the VA examiner who provided the April 2021 VA shoulder examination and opinion; if that examiner is unavailable, another, equally qualified clinician may be consulted. The claims file must be reviewed by the examiner. If the examiner determines another VA examination is necessary, one should be scheduled. The examiner must provide a retrospective medical opinion regarding the severity of the Veteran's right shoulder disabilities at the time of the October 2012, January 2015, and September 2017 VA shoulder conditions examinations. The examination reports of record together with all other evidence pertaining to the severity of the Veteran's right shoulder prior to April 1, 2021, should be discussed. The examiner should render, if possible, without resorting to mere speculation, a retrospective opinion that estimates the ranges of motion of the Veteran's right shoulder in active motion, passive motion, weightbearing, non-weightbearing (including accounting for functional impairment due to pain) and the additional functional impairment on repeated use or during flare-ups, at each time the right shoulder was examined with range of motion testing for rating purposes. If an such an opinion cannot be provided, the examiner should provide an explanation as to why this is so and what, if any, additional evidence would permit such an opinion to be provided. 2. Return the file to the VA examiner who provided the April 2021 VA ankle examination and opinion; if that examiner is unavailable, another, equally qualified clinician may be consulted. The claims file must be reviewed by the examiner. If the examiner determines another VA examination is necessary, one should be scheduled. The examiner must provide a retrospective medical opinion regarding the severity of the Veteran's right ankle disabilities at the time of the October 2012, January 2015 and March 2018 VA ankle conditions examinations. The examination reports of record together with all other evidence pertaining to the severity of the Veteran's right ankle prior to April 1, 2021, should be discussed. The examiner should render, if possible, without resorting to mere speculation, a retrospective opinion that estimates the ranges of motion of the Veteran's right ankle in active motion, passive motion, weightbearing, non-weightbearing (including accounting for functional impairment due to pain) and the additional functional impairment on repeated use or during flare-ups, at each time the right ankle was examined with range of motion testing for rating purposes. If an such an opinion cannot be provided, the examiner should provide an explanation as to why this is so and what, if any, additional evidence would permit such an opinion to be provided. 3. Upon completion of the above readjudicate the remanded issues. If the benefits sought remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.