Citation Nr: 22018586 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-19 768 DATE: March 29, 2022 REMANDED Entitlement to an evaluation in excess of 20 percent for tendonitis of the left shoulder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from July 2006 to December 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2015 rating decision of a VA Regional Office (RO). This matter was previously remanded for further development in January 2019 and August 2021. The matters return for appellate consideration. The Board notes that correspondence from the Veteran's representative, an attorney, dated September 28, 2021 and December 10, 2021, declaring the attorney's withdrawal from representation does not satisfy the requirements of 38 C.F.R. § 20.6 (a) (Withdrawal of services of a representative). Although the withdrawal letter states the representative is withdrawing, the letter does not contain reasons for the withdrawal or a signed statement certifying that a copy of the motion was sent by first class mail, postage prepaid, to the Veteran, setting forth the address to which a copy was mailed. 38 C.F.R. § 20.6 (a)(2). In March 2022, the appeal was returned to the Board. Therefore, 38 C.F.R. § 20.6 is for application where the attorney files a motion to withdraw. Because the Board has jurisdiction over this issue, and the attorney's motion to withdraw does not satisfy the requirements of 38 C.F.R. § 20.6 (a), the attorney retains such status until such time that an adequate motion is filed, and the Board grants such motion. Entitlement to an evaluation in excess of 20 percent for tendonitis of the left shoulder is remanded. The Veteran contends that his left shoulder disability is more severe than contemplated by the assigned evaluation. Pursuant to the August 2021 Board remand, a January 2022 VA examination was obtained. The examination demonstrated abnormal ranges of motion and pain upon abduction and external rotation, with passive range of motion noted to be "Same as active ROM [range of motion]." The examination also demonstrated pain upon weight bearing but no functional loss and no additional functional loss upon repetitive use testing. The examiner indicated that the Veteran was not being examined immediately after repeated use over time nor during a flare up; the examiner noted no functional loss both during repeated use over time and flare ups. Lastly, the examiner stated that there is a worsening of the Veteran's symptoms since his last evaluation. The Board finds the January 2022 VA examination is inadequate. The examiner reported the Veteran does not experience flare-ups with regard to his service-connected left shoulder disability, which is inconsistent with the previous VA examination in November 2019. Furthermore, and more notably, the examiner noted a worsening of the Veteran's symptoms. Given that the most recent examination does not appear to have been conducted during a period of flare-up, and given the lack of information concerning the frequency, duration, characteristics, and severity of flare-ups, the Board finds the January 2022 VA examination inadequate in this regard. Additionally, the examiner noted pain upon abduction and external, but range of motion measurements were not provided in that regard and therefore it is unclear if those measurements are the same as recorded in active motion. As such, another VA examination is required to determine the current severity of the left shoulder disability. On remand, the examiner should specifically ask the Veteran if he experiences flare-ups of his shoulder disability and to attempt to elicit information regarding the severity, frequency, and duration of any such flare-ups. The Board notes effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38C.F.R. §4.71a), including Diagnostic Code 5201. Therefore, an accurate depiction of the Veteran's left shoulder disability would be helpful. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected left shoulder disability. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail in accordance with the criteria for evaluating shoulder disabilities. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing (if applicable). The examiner must also test and record range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Further, the examiner must also specifically express an opinion concerning whether there would be additional limitation on functional ability on repeated use or during flare-ups, and to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. In this regard, the examiner must specifically ask the Veteran whether he experiences flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. The examiner should also reconcile inconsistencies with the November 2019 VA examination regarding information elicited for repeated use and flare ups and worsening of symptoms since that time. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.