Citation Nr: 25008024 Decision Date: 06/16/25 Archive Date: 06/16/25 DOCKET NO. 16-08 677 DATE: June 16, 2025 REMANDED Entitlement to an increased rating in excess of 40 percent for loss of use of the right upper extremity for the period prior to January 14, 2020 is remanded. REASONS FOR REMAND The Veteran had active service from November 1970 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in March 2019 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In June 2019, the Board remanded the claim for additional development. In an April 2020 rating decision, the RO noted that the Veteran's previously separately rated diabetic neuropathy of the right upper extremity and residuals of an injury to the right shoulder were now rated as loss of use of the right upper extremity, and granted an increased evaluation of 70 percent, effective January 14, 2020. Additionally, in a September 2020 rating decision, the Veteran was granted entitlement to a TDIU, effective December 6, 2012. In June 2021, the Board granted an increased rating of 40 percent for residuals of an injury to the right shoulder for the period prior to January 14, 2020; denied an increased rating in excess of 70 percent for loss of use of the right upper extremity (previously separately evaluated as residuals of right shoulder injury and diabetic neuropathy of the right upper extremity) for the period from January 14, 2020; and denied a TDIU for the period prior to December 6, 2012. The Veteran appealed the Board's June 2021 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2023, the Court issued a Memorandum Decision that vacated the Board's decision, and remanded the matter for further consideration consistent with the Court's Memorandum Decision. In August 2023, the Board denied an increased rating in excess of 40 percent for residuals of an injury to the right shoulder for the period prior to January 14, 2020; and denied an increased rating in excess of 70 percent for loss of use of the right upper extremity for the period from January 14, 2020. The Veteran appealed the Board's August 2023 decision to the Court. In October 2024, the Court issued a Memorandum Decision that vacated and remanded the portion of the Board's decision to deny an increased rating in excess of 40 percent for loss of use of the right upper extremity for the period prior to January 14, 2020, but affirmed the denial of an increased rating in excess of 70 percent for the period from January 14, 2020. 1. Entitlement to an increased rating in excess of 40 percent for loss of use of the right upper extremity for the period prior to January 14, 2020 is remanded. In the Court's October 2024 memorandum decision, it was determined vacatur and remand were necessary because the Board primarily relied on an inadequate January 2015 VA examination report. Specifically, the Court stated that the January 2015 examination did not satisfy the standards set forth in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Court thus concluded that the Board did not provide an adequate statement of reasons or bases because it did not discuss whether a retrospective opinion was required. In light of the Court's holding, the Board finds remand is warranted for a retrospective opinion to address evidence of the Veteran's flare-ups during the period prior to January 14, 2020. The examiner should consider the evidence of record and provide an estimation on any additional functional loss suffered during flare-ups for the period prior to January 14, 2020, in degrees. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the severity of the Veteran's loss of use of the right upper extremity for the period from January 28, 2015 to January 13, 2020. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria from January 28, 2015 to January 13, 2020. In so doing, the examiner must consider the evidence regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups during this period. The examiner must provide an estimate in degrees of the additional impairment due to flare-ups based on the evidence of record and the Veteran's statements. The examiner is advised that this case was remanded back to the Board because the Court determined the January 2015 VA examination did not comply with the standards set forth in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.