Citation Nr: 23019378 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 17-43 951 DATE: March 29, 2023 REMANDED Entitlement to a disability rating in excess of 20 percent for left shoulder impingement syndrome with mild AC joint degeneration and left trapezius strain and contusion is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative disc and joint disease of the lumbar spine prior to December 15, 2016 is remanded Entitlement to a disability rating in excess of 20 percent for degenerative disc and joint disease of the lumbar spine from December 15, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1976 until his honorable discharge in September 1983with subsequent service in the Texas Army National Guard, including active service from August 2008 until his honorable discharge in September 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision for the lumbar spine claim and a January 2011 rating decision for the left shoulder claim of the Regional Office of the Department of Veterans Affairs (VA). In January 2022, the Veteran testified before the undersigned at a Board hearing. A transcript of his testimony has been associated with the claims file. In September 2022, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain new VA examinations for the issues on appeal providing a retrospective opinion clearly identifying period(s) of increased and/or decreased severity and flare-ups. Although VA examination were obtained, the do not include an adequate retrospective opinion. As such, the Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a disability rating in excess of 20 percent for left shoulder impingement syndrome with mild AC joint degeneration and left trapezius strain and contusion. The post-remand VA examination failed to provide a retrospective opinion clearly identifying period(s) of increased and/or decreased severity to include as a result of any flare-up of disability in accordance with the September 2022 Board remand and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the record contains a contemporaneous VA examination regarding the Veteran's left shoulder impingement syndrome with mild AC joint degeneration and left trapezius strain and contusion, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups and while the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate why speculation was required. Specifically, during the February 2015 VA examination, the examiner was unable to offer an opinion without resorting to mere speculation as to whether or not pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use overtime. Furthermore, the February 2015 VA examiner noted that the Veteran does not report flare-ups of the shoulder or arm but did describe pain being aggravated by above shoulder motions, heavy lifting, and cold, wet weather. These symptoms appear to describe flare-ups of the left shoulder disability. Furthermore, during the December 2016 VA examination, the examiner noted that the Veteran did report flare-ups and that pain is exacerbated by range of motion, especially overhead motions of the arm, noting that the Veteran reported left shoulder pain flares if he lies on the left side and with overhead activities, but is unable to provide the additional limitations in terms of range of motion because it would call for speculation since the Veteran was not experiencing a flare-up during the examination. The most recent VA examination in the examiner provided active range of motion for the left shoulder and then stated, "The veteran has daily Flare-ups occurring three times daily lasting 20 minutes each occurrence. The veteran is not able to perform any functions requiring lifting and carrying." The examiner then provided a "flare-up" range of motion. However, a retrospective analysis, that is, medical findings that cover the entire course of the appeal, was not provided. A such, the claim must be remanded. 2. Entitlement to a disability rating in excess of 10 percent for degenerative disc and joint disease of the lumbar spine prior to December 15, 2016. 3. Entitlement to a disability rating in excess of 20 percent for degenerative disc and joint disease of the lumbar spine from December 15, 2016. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. Again, the post-remand VA examination failed to provide a retrospective analysis of the Veteran's flare-ups in terms of range of motion as instructed in the Board remand. While the record contains a contemporaneous VA examination regarding the Veteran's degenerative disc and joint disease of the lumbar spine, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. Furthermore, the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Within the December 2016 VA examination, the examiner noted that pain, weakness, fatigability, incoordination significantly limits functional ability during flare-ups but was unable to describe in terms of range of motion without mere speculation because the examination was not being conducted during a flare-up. The Veteran was afforded a third VA examination in September 2020 that demonstrated considerable improvement in many aspects, despite being conducted during a flare-up, the Veteran had generally similar results to his December 2016 results that were not conducted during a flare-up. In the most recent VA examination, the examiner provided active range of motion for the low back and then stated, "The veteran experiences flare-ups 30-45 min/per day; twice daily preventing the veteran from being able to perform any functions requiring walking, standing and sitting for extended periods of time." The examiner then provided a "flare-up" range of motion. However, a retrospective flare-up analysis was not provided. Therefore, a remand for a retrospective opinion is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion addressing the retrospective severity of the Veteran's service-connected left shoulder impingement syndrome with mild AC joint degeneration and left trapezius strain and contusion. The examiner should clearly identifying period(s) of increased and/or decreased severity and flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After,?readjudicate?the Veteran's claim. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.