Citation Nr: 22044733 Decision Date: 08/08/22 Archive Date: 08/08/22 DOCKET NO. 15-23 287A DATE: August 8, 2022 REMANDED Entitlement to an increased rating in excess of 10 percent prior to December 6, 2019, and in excess of 20 percent from December 6, 2019, for service-connected left shoulder impingement syndrome status-post surgery (hereinafter "left shoulder disability") is remanded. Entitlement to an increased rating in excess of 10 percent for service-connected postoperative meniscectomy of the left knee with arthritis (hereinafter "left knee disability") is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1993 to July 1993, June 1994 to September 1997, and from November 1998 to November 2001. This matter originally came before the Board of Veterans' Appeals (Board) from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at an August 2018 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter has previously been remanded by the Board for further development, most recently in December 2020. This matter is again before the Board and has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). Entitlement to an increase rating in excess of 10 percent prior to December 6, 2019, and in excess of 20 percent from December 6, 2019, for a service-connected left shoulder disability and entitlement to an increased rating in excess of 10 percent for a service-connected left knee disability are remanded. The Veteran believes that higher ratings for the above disabilities are warranted. Examinations for the left shoulder and left knee took place in 2014, 2018, 2019, and 2020. See April 2014 C&P Exam; October 2018 C&P Exam; November 2018 C&P Exam; April 2019 C&P Exam; December 2019 C&P Exam; January 2020 C&P Exam. The Board finds that a new VA examination is needed based on deficiencies in with all of the previous examinations of record. The 2014 examination, for instance, did not provide information concerning the additional range of motion loss with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board previously found problems with the 2018 examinations. See July 2019 BVA Decision. The January 2019 examination did not provide estimates of the additional range of motion loss with repeated use over time and did not explain why this was not possible. See Sharp, 29 Vet. App. at 33. The December 2019 and the 2020 examinations did not consider the ameliorative effects of medication when evaluating the disabilities. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Additionally, among other problems, none of the left shoulder examinations considered medical records showing the inability to obtain dissociation between the scapula and humerus and did not consider whether this represented ankylosis where the scapula and humerus move as one piece. See February 2020 CAPRI; 38 C.F.R. § 4.71a, Diagnostic Code 5200. Similarly, none of the left knee examinations considered whether there was a tibia and fibula problem or left knee locking despite the Veteran's report of such. See Hearing Transcript; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also notes that based on the Veteran's report that the left knee has worsened since the last examination, a contemporaneous examination is needed. See March 2021 Appellate Brief; 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). For these reasons, among others, a remand is needed for a new VA examination. The matter is REMANDED for the following action: 1. Update VA treatment records. VA treatment records appear current up to November 2020. 2. Schedule one or more appropriate VA examinations to determine the nature and severity of the service-connected left shoulder and left knee disabilities since October 2013. This should include, but is not limited to, all muscle injuries and all neurological impairment. The claims file and a copy of this Remand should be made available to and should be reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected left shoulder and left knee disabilities since October 2013. This should include, but is not limited to, any muscle injuries and any neurological impairments. The severity of any muscle injuries (i.e., slight, moderate, moderately severe, or severe) and the severity of any neurological impairments (i.e., mild, moderate, moderately severe, severe incomplete paralysis, or complete paralysis of the affected nerves) should be assessed. Identify the specific muscle groups associated with any muscle injuries and identify the specific nerves associated with any neurological impairments. This should also include all symptoms and related impairment that would have been present without the relief provided by various medications to treat the disabilities. The Board notes that the nature, severity, signs, and symptoms of the disabilities may vary at different points during the time period being reviewed by the examiner. Such variations should be reflected in the examination report, if applicable. The examiner should provide range of motion measurements in degrees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, non-weight-bearing, and if possible, the range of motion of the opposite undamaged joint. Such range of motion results should be recorded in the report. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why in the report. The examiner must comment on the functional limitations caused by repetitive use over time and flare-ups due to the Veteran's service-connected left shoulder and left knee disabilities. The examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited after repetitive use over time and during flare-ups in terms of degrees, if possible. If it is not possible, the examiner should explain why, making clear that all procurable and assembled data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to repetitive use over time and flare-ups elicited from the Veteran) was considered, and that the medical community at large could not provide such an opinion without resorting to speculation. If it is not possible due to a deficiency in the record or a lack of personal medical knowledge, the examiner should state so. Any additional impairment on use or in connection with repetitive use over time and flare-ups should be described in terms of the degree of additional range of motion loss. If the Veteran states that the limitation on range of motion is variable, provide the range of variableness in terms of degrees. The examiner should specifically describe the severity, frequency, and duration of impairment after repetitive use over time and during flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such repetitive use over time and flare-ups affect functional impairment. This testing should be done regardless of whether the Veteran is tested after repetitive use over time or during a flare-up or not. The examiner should also provide estimates of what the Veteran's range of motion measurements, symptoms, and related impairment would have been since October 2013 for the left shoulder and left knee disabilities with and without the ameliorative effects of the various medications used to treat the disabilities. The left shoulder examiner should also determine which shoulder is the dominant shoulder. After a review of the record on appeal and an examination of the Veteran, the examiner is asked to provide the following opinions: (A) For the left shoulder disability, is it approximately at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher), that at any point since October 2013, the Veteran has had (or would have had without the ameliorative effects of medication for the disability) scapulohumeral articulation ankylosis (the scapula and humerus move as one piece) or the functional equivalent? If yes, the examiner should provide the time periods in which the ankylosis was favorable, abduction to 60 degrees, can reach mouth and head; intermediate between favorable and unfavorable; and/or unfavorable, abduction limited to 25 degrees from side. The examiner must consider and address medical records and lay reports showing the lack of dissociation between the scapula and humerus. See February 2020 CAPRI. (B) For the left knee disability, is it approximately at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher), that at any point since October 2013, the Veteran has had (or would have had without the ameliorative effects of medication for the disability): Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint or the functional equivalent? If yes, for which periods of time? Nonunion of the tibia and fibula with loose motion requiring a brace or the functional equivalent? If yes, for which periods of time? Malunion of the tibia and fibula with marked or moderate knee or ankle disability, or the functional equivalent? The examiner should discuss whether the malunion was marked or moderate for each applicable period of time. The examiner must consider and address medical records and lay reports showing locking, pain, and effusion, as well as potential issues with the tibia and fibula. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: Left shoulder (1) Various lay statements. See March 2021 Appellate Brief; September 2020 Appellate Brief; July 2019 Email Correspondence; November 2018 Statement in Support of Claim; August 2018 Statement in Support of Claim; Hearing Transcript; May 2016 Email Correspondence; November 2013 Statement in Support of Claim. (2) VA examinations. See April 2014 C&P Exam; October 2018 C&P Exam; November 2018 C&P Exam; December 2019 C&P Exam; January 2020 C&P Exam. (3) Medical records showing lots of medication for the left shoulder; faster loss of strength in the left hand than the right hand; and episodes of numbness in the left arm, which may have resulted from the left shoulder surgery. See January 2021 CAPRI. (4) Medical records showing popping in the shoulder, continued occasional catching in the shoulder, left upper extremity burning/numbness/tingling, loss of strength in the arm, significant popping with pain when trying to raise the arm above about 90 degrees, anti-inflammatory medication for the shoulder, and an assessment of paresthesias in the arm which was probably from the shoulder. See February 2020 CAPRI. (5) Medical records showing a left shoulder dislocation feeling and left upper extremity tingling. See November 2019 Medical Treatment Record. (6) All other relevant lay and medical evidence. Left knee (1) Various lay statements. See March 2021 Appellate Brief; September 2020 Appellate Brief; August 2018 Statement in Support of Claim; Hearing Transcript; January 2017 Status Letter; May 2016 Email Correspondence; April 2016 Congressionals; July 2015 Form 9; May 2014 NOD; November 2013 Statement in Support of Claim. (2) VA examinations. See April 2014 C&P Exam; November 2018 C&P Exam; April 2019 C&P Exam; December 2019 C&P Exam. A 2019 examination found a meniscal tear with frequent episodes of joint pain and frequent episodes of joint effusion. See December 2019 C&P Exam. (3) Medical records showing no sensation around the anterior knee and tibia, joint fluid and soft tissue edema, and an assessment of left knee weakness. See November 2019 Medical Treatment Record. (4) Medical records showing fixation hardware in the distal femur and the proximal tibia. See May 2014 CAPRI. (5) Medical records showing left knee locking, popping, and mechanical problems. See March 2014 VAMC Other Output / Reports. (6) All other relevant lay and medical evidence. A complete and clear rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. 3. Readjudicate the issues on appeal. The AOJ should consider separate ratings, if warranted by the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.