Citation Nr: 22019441 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 16-14 322 DATE: April 1, 2022 REMANDED Entitlement to a rating in excess of 30 percent for a left shoulder disability with limitation of motion beginning January 31, 2014, is remanded. Entitlement to a rating in excess of 20 percent for a right shoulder with impairment of the humerus is remanded. Entitlement to a rating in excess of 20 percent for residuals of recurrent dislocation of the right shoulder, status post-surgical repair, with chronic tendonitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1985 to May 1986. These matters are on appeal to the Board of Veterans Appeals (Board) from a December 2014 rating decision. In May 2020, the Board denied ratings in excess of 20 percent for the right shoulder and granted a 30 percent rating for the left shoulder, effective January 31, 2014. In an August 2021 Joint Motion for Partial Remand (Joint Motion), the parties agreed that vacatur and remand were required because the Board erred in not ensuring substantial compliance with its October 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board found the December 2019 medical report, which was ordered pursuant to the October 2019 remand, was inadequate. In its October 2019, the Board, "[i]n light of Sharp," ordered an opinion to clarify the severity of the Veteran's bilateral shoulders and to address retrospective elements, such as additional loss of motion after repetitions, and functional loss due to pain (considering active and passive motions as well as weightbearing and non-weightbearing). See Sharp v. Shinseki, 29 Vet. App. 26 (2017). Accordingly, the Board finds a remand is required to comply with the Joint Motion. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidentiary record. 2. Afford the Veteran an examination to determine the severity of his bilateral shoulder conditions. The examiner must obtain from the Veteran, and record in the examination report, a complete description regarding the symptoms he experiences. The examiner must provide the following information in the medical report: (a) Range of Motion Testing: The range of motion of the left and right shoulders in degrees. The examiner must, to the extent practicable, specifically measure both active AND passive range of motion in weight-bearing AND nonweight-bearing. If any such testing cannot be performed on either joint, the examiner must specifically state so and provide an explanation as to why. (b) Functional Impairment: Comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination to the Veteran's left and right shoulder disabilities. The examiner should express this in terms of the degree of additional range of motion lost due to any pain with movement, weakened movement, excess fatigability, or incoordination. (c) Retrospective Opinions: To the extent possible, provide retrospective opinions addressing additional loss of motion after repetitions AND functional loss due to pain (considering active and passive motion as well as weight-bearing and nonweight-bearing) throughout the claims period (since October 2014). The examiner should express this in terms of the degree of additional range of motion lost due to repetitive use. (d) Flare-ups: Obtain from the Veteran and record in the examination report the severity, frequency, and duration of flare-ups; precipitating and alleviating factors of flare-ups; and estimate, to what extent, if any, flare-ups affect functional impairment. The examiner must provide an opinion regarding any additional impairment on use during flare-ups and describe this in terms of the degree of additional loss of range of motion. (e) Neurological Manifestations: Determine whether there are any neurological manifestations associated with the service-connected left and right shoulders. Why or why not? With respect to the above opinions, the examiner is informed that any failure to provide an opinion regarding additional loss of range of motion on repetitive use or during flare-ups will be deemed inadequate if the sole rationale is that the Veteran was not examined on repetitive use or during a flare-up. Consideration MUST be given to the Veteran's competent lay statements. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.