Citation Nr: 22044590 Decision Date: 08/05/22 Archive Date: 08/05/22 DOCKET NO. 09-34 149 DATE: August 5, 2022 REMANDED Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for an upper body disorder, to include a left shoulder disorder, is remanded. Entitlement to a rating in excess of 20 percent for service-connected chronic low back strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extra-schedular basis prior to May 28, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1980 to January 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2009 and September 2015 by a Department of Veterans Affairs (VA) Regional Office. In February 2012, the Veteran testified at a Board hearing before a Veterans Law Judge in regard to his claim for an increased rating for his back disability. A transcript of the hearing is of record. As the Veterans Law Judge subsequently retired, the Veteran was informed that he may testify at a new Board hearing before a different Veterans Law Judge in a June 2022 letter; however, he did not respond to such letter. Thus, the Board finds that there is no prejudice to the Veteran in proceeding with the adjudication of his claims. In July 2012, the Veteran's claim for an increased rating for his back disability was remanded for additional development. In July 2018 and June 2020, such claim was also remanded, as well as the other claims on appeal for additional development. They now return for further appellate consideration. 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for an upper body disorder, to include a left shoulder disorder. 3. Entitlement to a rating in excess of 20 percent for service-connected chronic low back strain. Pursuant to the June 2020 remand, an exam scheduling request was made in July 2020 to schedule the Veteran for examination in connection with claims regarding his bilateral shoulders and back disability. However, in January 2021, the Veteran called the Agency of Original Jurisdiction (AOJ) stating that he did not want to go to the VA examination scheduled for his shoulders as there was nothing else that could be done for him, and he was only taking pain medication for pain in his shoulders. Additionally in February 2021, the Veteran called the AOJ again stating that he no longer wanted his appeal to be open and requested that it be closed out as he was already at 100 percent and there was nothing more that could be done. However, as such statement was not writing, it is not considered a withdrawal of the appeal. Hembree v. Wilkie, 33 Vet. App. 1 (2020). Nonetheless, in January 2022 and February 2022, exam requests were made to schedule the Veteran for VA shoulder and back exams. However, such were cancelled at the Veteran's request. In this regard, his VA treatment records reveal that in December 2021, he was exposed to COVID-19 and in January 2022, he was told he could not travel to Cleveland since he was experiencing a cough and had chronic obstructive pulmonary disease. Additionally, April 2022 exam scheduling request contention cancellations reveal that VA exams in connection with his claims were cancelled as the Veteran was unavailable. However, in June 2022, the Veteran submitted a letter stating that COVID-19 took him to a "dark place" and that there was a misunderstanding with the AOJ in regard to whether he had to the attend the appointments. He also apologized and asked to be given another opportunity. Thus, the Board finds that a remand is necessary to comply with the June 2020 remand and obtain an addendum opinion to determine that nature and etiology of the Veteran's right shoulder disorder and upper body disorder, to include a left shoulder disorder. Additionally, he should be afforded an examination to determine the current nature and severity of his back disability. In this regard, the Veteran is advised that it is imperative that he cooperate in the development of his claims and report for the VA examination. Otherwise, relevant evidence expected to be obtained as a result of such examination cannot be considered in the adjudication of his claim. 4. Entitlement to a TDIU on an extra-schedular basis prior to May 28, 2015. The claim for entitlement to a TDIU on an extra-schedular basis is inextricably intertwined with the remanded increased rating claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran's TDIU claim must be deferred pending the outcome of the remanded claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this Remand, to an appropriate medical professional to render an etiological opinion as to the Veteran's right shoulder disorder and upper body disorder, to include a left shoulder disorder. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the examiner should address following inquires: (A) Identify if the Veteran has had a right shoulder disorder, at any time proximate to his May 2015 claim, even if such is currently asymptomatic or has since resolved. (B) For each diagnosed right shoulder disorder and upper body disorder, including a left shoulder disorder, currently diagnosed as left shoulder strain, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset during service, or is otherwise related to service, to include lifting generators in-service. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to any shoulder disorder, injury, or complaints thereof, and/or a lack of medical records demonstrating a continuity of care after service. A rationale for any opinion offered should be provided. 2. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected back disability. The record, including a copy of this remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's back disability. (B) The examiner should record the range of motion of the thoracolumbar spine observed on clinical evaluation in terms of degrees for all relevant planes. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by repetitive use and repeated use over time. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited on repetitive use and repeated use over time, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his service-connected back disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. If the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. If the examiner cannot provide an opinion as to (C) or (D) 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 repetitive use, repeated use over time, and flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner is requested to indicate whether intervertebral disc syndrome related to the Veteran's service-connected back disability is present. If so, the examiner should provide the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an 'incapacitating episode' is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (F) The examiner is also requested to indicate whether the Veteran's back disability results in any objective neurologic impairments and, if so, the nature and severity of such neurologic impairment. (G) The examiner should also comment on the functional impairment resulting from the Veteran's back disability. A rationale for any opinion offered should be provided. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.