Citation Nr: 25003341 Decision Date: 03/10/25 Archive Date: 03/10/25 DOCKET NO. 19-36 311A DATE: March 10, 2025 REMANDED Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1966 to September 1969. The Veteran passed away in August 2023. His spouse has been properly substituted as the appellant. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a rating in excess of 20 percent for a left shoulder disability. In February 2024, the Board denied entitlement to a rating in excess of 20 percent for left (minor) shoulder degenerative arthritis and remanded entitlement to a TDIU. In January 2025, pursuant to a Joint Motion for Remand, the United States Court of Appeals for Veterans Claims (CAVC) vacated the Board's decision and remanded the claim because the Board erred when it relied on an inadequate examination to deny entitlement to a rating in excess of 20 percent. Specifically, CAVC noted that the VA examination did not make findings as to whether the Veteran experienced pain on motion, in passive motion, or in non-weight-bearing. Thus, the claim is now back before the Board for adjudication. Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. The appellant contends that a disability rating in excess of 20 percent for a left shoulder disability is warranted. VA conducted an examination of the Veteran's left shoulder in August 2016. In order for an examination of a joint disability based on painful motion to be adequate, the medical examiner must test for pain on active and passive motion and in weight and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). However, the August 2016 examination does not comply with the requirements in Correia as it does not contain findings as to whether the Veteran experienced pain on motion, in passive motion, or in non-weight-bearing. As such, the Board finds that the August 2016 VA examination is inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, remand for a new opinion is required. The Veteran's claim is therefore remanded for a retrospective opinion regarding the Veteran's left shoulder disability. Entitlement to a TDIU is remanded. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, the records indicated that the Veteran's service-connected left shoulder disability impacted his ability to work prior to his passing. See September 2016 Independent Medical Examination. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) ("[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.") The Board notes that the issue of TDIU is intertwined with the issue of an increased rating for the Veteran's service-connected left shoulder and will defer adjudication at this time. The matters are REMANDED for the following action: Send the Veteran's claims file to an examiner for a retroactive opinion regarding the Veteran's left shoulder disability. The examiner is instructed to review all pertinent records associated with the claims file, particularly the August 2016 VA examination and September 2016 Independent Medical examination, to ascertain the severity and manifestations of the Veteran's service-connected left shoulder disability from July 2017, the date of his supplemental claim, and August 2023, the date of death. (a) Based on the medical records, the examiner should note all signs and symptoms necessary for evaluating the service-connected left shoulder disability under the rating criteria. (b) After a review of the record, estimates of range of motion should be noted when possible, including the point at which there is pain on motion, if any. Specifically, estimates of active and passive range of motion as well as weight-bearing and non-weight-bearing should be noted. The examiner should indicate the estimates from July 2017 to August 2023. (c) The examiner should provide estimates as to the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or on repeated use overtime. Additionally, the examiner should comment on any additional functional impairment in terms of the degree of additional range-of-motion loss, if possible, or explain why such details cannot be feasibly provided. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). (e) The examiner is asked to describe the impact, if any, the Veteran's left shoulder disability had on his ability to work from July 2017 through August 2023. Any opinion expressed must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. S. Merrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Murphy 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.