Citation Nr: 22045708 Decision Date: 08/11/22 Archive Date: 08/11/22 DOCKET NO. 18-46 998 DATE: August 11, 2022 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for an anxiety disorder is reopened. Service connection for an acquired psychiatric disorder, namely an unspecified anxiety disorder, is granted. The issue of entitlement to service connection for a right knee disorder is dismissed. The issue of entitlement to service connection for a left knee disorder is dismissed. The issue of entitlement to service connection for a traumatic brain injury (TBI) is dismissed. REMANDED Entitlement to a rating in excess of 20 percent for left shoulder glenohumeral osteoarthritis is remanded. Entitlement to a rating in excess of 20 percent for left shoulder glenohumeral joint dislocation is remanded. Entitlement to a rating in excess of 20 percent for residuals, right shoulder separation, including rotator cuff tear with labral tear and glenohumeral osteoarthritis, also claimed as loss of use of function, is remanded. Entitlement to a rating in excess of 30 percent for right shoulder glenohumeral joint dislocation is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities is remanded. FINDINGS OF FACT 1. In a September 2012 rating decision, the Regional Office (RO) denied service connection for an anxiety disorder; the Veteran did not appeal, and new and material evidence was not received within one year of notice of the decision. 2. Evidence received since the final September 2012 decision relates to an unestablished fact necessary to substantiate the claim of service connection for an anxiety disorder. 3. The Veteran's diagnosed psychiatric disorder, namely an unspecified anxiety disorder, is etiologically related to his service or had its onset during service. 4. At the April 2022 Board hearing, and prior to the promulgation of a decision, the Veteran stated that he wished to withdraw the issue of service connection for a right knee disorder. 5. At the April 2022 Board hearing, and prior to the promulgation of a decision, the Veteran stated that he wished to withdraw the issue of service connection for a left knee disorder. 6. At the April 2022 Board hearing, and prior to the promulgation of a decision, the Veteran stated that he wished to withdraw the issue of service connection for a TBI. CONCLUSIONS OF LAW 1. The September 2012 rating decision that denied the Veteran's claim of entitlement to service connection for an anxiety disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for an anxiety disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, namely an unspecified anxiety disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for withdrawal of the issue of entitlement to service connection for a right knee disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.204. 5. The criteria for withdrawal of the issue of entitlement to service connection for a left knee disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.204. 6. The criteria for withdrawal of the issue of entitlement to service connection for a TBI have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to February 1992. These matters come before the Board of Veterans' Appeals (Board) from rating decisions issued in February 2015 and March 2015 by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In April 2022, the Veteran and his wife testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for 90 days to allow for the submission of additional evidence. This requested extension period has now expired. Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as entitlement to service connection for an anxiety disorder. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder. A claim for a TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). Here, the Veteran asserts that his service connected right and left shoulder disorders interferes with his ability to maintain employment. As the record now raises a question of whether the Veteran is unemployable due to his service-connected disabilities, a claim for a TDIU is properly before the Board. Relevant Statutes and Regulations Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show the existence of (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for an anxiety disorder is reopened. 2. Service connection for an acquired psychiatric disorder, namely an unspecified anxiety disorder, is granted. At his April 2022 Board hearing, the Veteran contended that he has been treated for a psychiatric disorder, diagnosed as depression, which is related or was caused by his shoulders. The Veteran related that his shoulders have caused him to lose several jobs and that his constant state of unemployment has caused him to be depressed. The Veteran testified that his shoulder symptoms have limited him from performing even the simplest tasks such that he can't even change a lightbulb and he stated that these limitations upset him a great deal. The Veteran's claim of entitlement to service connection for an anxiety disorder was previously denied by the RO in September 2012. The evidence of record at the time of the rating included the Veteran's service treatment records, which show that the Veteran received mental health counseling from November 1991 to January 1992 for behavior disorder. During a clinical visit in January 1992, it was noted that the Veteran started having difficulty with Air Force and was being processed for discharge secondary to color blindness not identified at enlistment. Following an evaluation, the Veteran was diagnosed with occupational problems, personality disorder, mixed, schizotypal, passive aggressive and antisocial disorder. Also considered was the result of a July 1992 VA examination for mental disorders that reported a diagnosis of anxiety disorder not otherwise specified (NOS). The examiner indicated that the Veteran reported that anxiety began after an incident when he almost caused an explosion since the accident, he was sent for several psychiatric evaluations but was not sure about the outcome or the diagnosis. The Veteran denied psychiatric treatments, admissions and medications in the military and after discharge until the present. The examiner noted that the current condition is anxiety disorder NOS, insomnia is one of the symptoms. The examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The rationale was that the evidence in the service treatment records were not enough to support a psychiatric diagnosis/condition in service. By a rating action in September 2012, the RO denied the claim of service connection for an anxiety disorder based on a finding that the Veteran's mental condition was not related to military service. The Veteran was notified of this decision in a September 2012 letter, but he did not file a notice of disagreement. In fact, no further communication regarding his claim of entitlement to service connection was received until May 2014, when VA received his instant petition to reopen his claim for entitlement to service connection for a psychiatric disorder, claimed as PTSD. Therefore, the September 2012 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from the September 2012 rating decision. See also Lang v. Wilkie, 971 F.3d 1348 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran's request to reopen his claim for service connection for an acquired psychiatric disorder, claimed as PTSD (VA Form 21-4138), was received in May 2014. Submitted in support of the claim was a private psychiatric evaluation, dated in May 2014, reflecting diagnoses of PTSD and mood disorder NOS; a March 2015 Disability Benefits Questionnaire (DBQ) report, reflecting a diagnosis of unspecified depressive disorder with anxious distress; VA progress notes dated from July 2017 to January 2018, reflecting ongoing evaluation and treatment for a psychiatric disability, diagnosed as depressive disorder and PTSD; and a July 2018 DBQ examination report, which determined that the Veteran did not have a mental disorder that conformed with the 5th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5) criteria; however, it was noted that the Veteran had a current diagnosis of unspecified depressive disorder, and a medical diagnosis relevant to the mental health disorder was bilateral shoulder dislocation. Also among the records is the report of a private medical opinion, dated in June 2022, wherein the examiner stated that the diagnosis of a personality disorder was erroneous; rather, the symptoms manifested during service must be considered evidence of an acquired psychiatric disorder, and it is at least as likely as not that Veteran's symptoms have remained chronic and persistent since their onset in 1991 to the present; and, it was his opinion that the Veteran's current condition must be considered at least as likely as not incurred during military service. The evidence also included the Veteran's April 2022 Board hearing testimony in which he maintained that his depression was caused by the constant pain and difficulties that he has had with his service-connected shoulders over the years. This evidence is both new and material and, therefore, sufficient to reopen the Veteran's claim. The evidence is "new" as it had not been previously considered by VA, and "material" because the records show that the Veteran has an acquired psychiatric disorder, variously diagnosed as PTSD and unspecified depressive disorder, and the Veteran has presented a new theory of entitlement, indicating that his depressive disorder may be related to his service-connected bilateral shoulder disorder. Consequently, the evidence relates to unestablished facts necessary to substantiate the underlying service connection claim. Therefore, the Board determines that this evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. Accordingly, entitlement to service connection for an anxiety disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. As to the merits of the claim, a July 2022 opinion from Dr. R.N., a private physician was submitted. The provider noted that the Veteran served during the Gulf War era as a fuel specialist, that his duties included filling and accompanying fuel bladders on aircraft flying into the Gulf War theater and that in or around May or June of 1991, after which he began having regular, day-long contact with various jet fuels, particularly JP-8 (diesel) and JP-4 and Mogas. The provider noted that the Veteran described being regularly and consistently exposed to fumes during these duties. The provider noted that the Veteran underwent a mental health evaluation in October 1991 after an incident in which the fuel truck he was driving was involved in a near-miss flight line incident. The provider further noted that, on questioning of witnesses, the Veteran was described as having been acting erratically preceding the incident, including experiencing periods of forgetfulness and reporting "blackouts", and engaging in risky and unusual behavior, including "hold[ing] leaves and rocks and talk[ing] to them;" a November 1991 mental health evaluation concluded no psychiatric diagnosis and that the Veteran was "qualified for duty", with "[n]o psychiatric basis for ad min[istrative] action," The provider further noted that the Veteran was seen again in January 1992 for psychological evaluation and found to have a "variety of schizotypical features," was assigned a diagnosis of "personality [disorder], mixed, [with] schizotypal, passive-aggressive, [and] antisocial features", and was recommended by the psychologist for administrative separation "ASAP [as soon as possible]".' The provider further noted that the Veteran underwent a separation evaluation later in January 1992 and his mental condition was descried as a behavior disorder consistent with an acquired mental condition. The private provider opined that in the absence of confirmation of a diagnosis of personality disorder over a ten-year period of regular mental health evaluation and treatment renders highly suspect the diagnosis assigned by the Veteran's active duty psychologist immediately preceding his expeditious administrative separation in 1992. The provider explained that as personality disorders tend to be fixed and not subject to cure or remission, the Veteran's diagnosis with personality disorder was erroneous and thus his documented mental health symptoms during service cannot be validly attributed to this condition and must instead be considered evidence of an acquired mental disorder incurred during service. The provider further opined that it is at least as likely as not that certain of the Veteran's mental health symptoms have remained chronic and persistent from the time of their onset in 1991 to the present, and that his current condition must be considered at least as likely as not incurred during military service. The provider further opined that the Veteran's claims both of regular exposure to jet fuel fumes and frequent flight into and out of the Gulf War theater during the period in question are credible and fully consistent with his military occupational specialty. The provider further noted that significant attention has been directed towards the Veteran's unusual and seemingly unreliable description of events during subsequent months preceding his initial mental health evaluation. The provider noted that although there is reliable documentation of the Veteran exhibiting cognitive dysfunction and evidence of unusual behavior beginning in and around October 1991, and although there is evidence broadly consistent with some type of near-miss flight-line incident while in Germany, the precise details of these events have been variably and inconsistently reported by the Veteran, in a manner that has provoked suspicion of secondary gain. The provider noted that when confronted by inconsistencies in his descriptions of events, the Veteran has consistently ascribed these to poor memory. The provider opined that the Veteran's fantastical descriptions of events while in Germany and in the Gulf War theater are most consistent not with secondary gain, but with simple confabulation - or the creation of false memories in the absence of an intention to deceive. The provider noted that veterans who confabulate may genuinely accept the veracity of their reported information, particularly if - as unfortunately appears to be the case with the Veteran during various mental health sessions - this information is affirmed and that confabulation is a common symptom of organic brain dysfunction marked by periods of memory loss, such as may occur from a variety of organic brain disorders, including traumatic brain injury and substance-induced delirium. The private provider further opined that the Veteran's period of confabulation correlates strongly with his likely greatest exposure to jet fuel fumes during the summer of 1991, absent more plausible causes, his subsequent development of anxiety, memory loss, and various schizotypal mental health symptoms is most consistent with the onset of a jet fuel toxicosis, a relatively infrequent but true occupational neurotoxicosis that is occasionally reported among those with significant occupational exposure to jet fuel fumes. The provider noted that several recent studies have described workers in the jet fuels industry being significantly more likely than matched controls to develop symptoms of anxiety and depression, personality change, memory loss, and emotional dysregulation, including anger and irritability. The provider opined that although the Veteran's acute jet fuel toxicosis has mostly resolved, certain of the Veteran's reported symptoms, including anxiety, memory loss, anger, and unusual behavior, have remained persistent and chronic to the present day, and have more likely than not contributed to the development of additional psychiatric disease. The provider noted that although the Veteran's symptoms have resulted in his receiving a bewildering and seemingly contradictory set of psychiatric diagnoses to account for his presentation, including depressive disorder NOS, PTSD, bipolar disorder, and attention deficit hyperactivity disorder (ADHD), a common feature throughout the period of interest has been a persistent anxiety, dating to his time in service, when he was described as "feel[ing] [him]self at [the] 'edge' a lot of the time. The private provider noted that, given the consensus diagnosis of anxiety disorder since his initial presentation in 2012, the Veteran's current mental health condition is most appropriately rated for disability purposes as unspecified anxiety disorder. The provider reasoned that lasting organic brain dysfunction resulting from a likely jet fuel intoxication provides a compelling explanation for certain of the Veteran's abnormal neuropsychological test results. The provider noted that a VA examiner found that the Veteran scored highly on measures consistent with "possible feigning of psychiatric illness," including reporting "unusual psychotic symptoms that are not typically present," including "symptoms that are illogical or bizarre" and that the Veteran's presentation ultimately contributed to the examiner opining the presence of no psychiatric illness at all, despite the Veteran's ten-year history of psychiatric treatment at VA facilities. However, the provider noted that the VA examiner failed to consider organic causes of the Veteran's psychiatric symptomatology dating to his time in service and thus repeated the same erroneous reasoning that led to the Veteran being expeditiously discharged for an erroneous diagnosis of personality disorder and did not consider the same unusual behavior demonstrated during his VA examination was entirely consistent with that which had previously led to the Veteran being diagnosed with a "behavior disorder" during service. In summary, the provider opined that, absent more plausible causes, the Veteran's development of anxiety, memory loss, and various schizotypal mental health symptoms is most consistent with the onset of a jet fuel toxicosis. The provider further opined that, although now mostly resolved, certain of the Veteran's reported symptoms, including anxiety, memory loss, anger, and unusual behavior, have remained persistent and chronic to the present day, and have more likely than not contributed to the development of additional psychiatric disease, which are most appropriately rated as unspecified anxiety disorder, The Board finds this opinion to have clear conclusions and supporting data, as well as a medical explanation connecting the Veteran's present psychiatric disorder to his service-connected lumbosacral strain. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). This opinion is therefore afforded probative weight. There is no contrary etiology opinion of record. In sum, the Veteran has a current diagnosis of an acquired psychiatric disorder, namely an unspecified anxiety disorder. There is only one probative etiology opinion of record, which provides a positive nexus opinion linking the Veteran's present acquired psychiatric disorder to his service. The Board does not find any sufficient basis to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Based on the weight of this evidence, the Board finds that service connection for an acquired psychiatric disorder, namely an unspecified anxiety disorder, is warranted. Accordingly, the Veteran's appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Withdrawn Issues 3. The issue of entitlement to service connection for a right knee disorder is dismissed. 4. The issue of entitlement to service connection for a left knee disorder is dismissed. 5. The issue of entitlement to service connection for a TBI is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Veteran or by his or her authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the veteran personally, without the express written consent of the veteran. 38 C.F.R. § 20.204(c). By a rating decision dated in February 2015 rating decision, the RO denied service connection for a right knee disorder, service connection for a left knee disorder, and service connection for a TBI. The Veteran perfected his appeal of the claims by filing a substantive appeal (VA Form 9) in August 2018. However, at his Board hearing in April 2022, the Veteran indicated that he wished to withdraw the claims of entitlement to service connection for a right knee disorder, service connection for a left knee disorder, and service connection for a TBI. The Veteran was accompanied by his representative and the Board apprised him of the consequences of withdrawing his appeals. The Board thus concludes that his withdrawal was made with knowledge of the consequences. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As the Veteran withdrew his appeal as to the issues of entitlement to service connection for a right knee disorder, service connection for a left knee disorder, and service connection for a TBI, there remains no allegations of errors of fact or law for appellate consideration on those issues. Accordingly, the Board does not have jurisdiction to review the appeal as to the issues of entitlement to service connection for a right knee disorder, service connection for a left knee disorder, and service connection for a TBI; those issues are therefore dismissed. REASONS FOR REMAND After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. The specific bases for remand are set forth below. 1. Entitlement to a rating in excess of 20 percent for left shoulder glenohumeral joint dislocation is remanded. 2. Entitlement to a rating in excess of 20 percent for left shoulder glenohumeral osteoarthritis is remanded. 3. Entitlement to a rating in excess of 20 percent for residuals, right shoulder separation, including rotator cuff tear with labral tear and glenohumeral osteoarthritis, also claimed as loss of use of function is remanded. 4. Entitlement to a rating in excess of 30 percent for right shoulder glenohumeral joint dislocation is remanded. The Veteran is claiming that his service-connected shoulder disabilities are each "worse than the percentage assigned." At his April 2022 Board hearing, the Veteran maintained that his shoulders have gotten worse since his last examination; he stated that his shoulders have deteriorated to the point that he is now in constant pain, and they are aggravated by the different types of jobs that he has taken. The Veteran is competent to report as to the worsening symptomatology of his left and right shoulder disabilities. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The record reflects that the most recent VA examination for evaluation of the shoulders was conducted in January 2015. Given the passage of time and the allegation that his disabilities are worse than when previously rated, a new VA examination is necessary. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (affording the veteran a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Further, the January 2015 shoulder examination of record does not provide sufficient information regarding range of motion. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In addition, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court determined that where a veteran suffers from flares of a condition, the examiner should opine as to range of motion during a flare. If the examinations are not conducted during a flare, the examiner(s) must attempt to estimate range of motion by eliciting information from the veteran, medical records, and other sources. The Board notes that the examiner failed to conduct Correia and Sharp compliant testing at the time of the January 2015 examination. A remand is, therefore, required in order to obtain adequate examinations and opinions under the current law. 6. Entitlement to a TDIU is remanded. The Veteran contends he is unable to maintain employment due to his service-connected right and left shoulder disorders. With respect to the issue of entitlement to a TDIU, the issue is inextricably intertwined with the other issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, a decision on the issue of a TDIU must be deferred until after the outcome of the Veteran's other claims. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the RO should schedule an appropriate VA examination with an appropriate physician to determine the current severity of the Veteran's service-connected left and right shoulder disabilities. The claims file and a copy of this remand must be made available to the examiner for review in conjunction with the examination. (a.) Conduct all indicated diagnostic tests that are deemed necessary for an accurate assessment of these disabilities. For each disability, the examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the joint(s) in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The examiner should detail range of motion measurements, to include the degree at which the Veteran experiences pain, any additional impact caused by motion such as weakness and fatigability, incoordination, or swelling. The examiner is to note a full and complete history of the Veteran's symptoms, to include symptoms associated with any flare-ups. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare up, the examiner is directed to ascertain information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner is reminded that the Veteran is competent to report his symptoms, including his claims of the worsening of each service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). (Continued on the next page) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.