Citation Nr: 18131225
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 13-29 406
DATE:	August 31, 2018
REMANDED
Entitlement to an evaluation in excess of 20 percent for right shoulder osteoarthritis is remanded.
Entitlement to an evaluation in excess of 10 percent for lumbar spine degenerative disc disease prior to June 10, 2014, is remanded.
Entitlement to an evaluation in excess of 20 percent for lumbar spine degenerative disc disease on or after June 10, 2014, is remanded.
REASON FOR REMAND
The Veteran served on active duty from April 1980 to September 2006.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA).
A hearing was held before the undersigned Veterans Law Judge in July 2016.  A transcript of the hearing is of record.
In a September 2016 decision, the Board dismissed the appeal as to a claim for service connection for a left shoulder disorder and remanded the above claims, as well as a claim for service connection for coronary artery disease for further development.  The case has since been returned to the Board for appellate review.
In a June 2014 rating decision and supplemental statement of the case (SSOC), the agency of original jurisdiction (AOJ) increased the evaluations for the right shoulder and lumbar spine disabilities to 20 percent, effective from June 10, 2014.  While the case was in remand status, the AOJ granted the 20 percent evaluation for the right shoulder disability back to November 22, 2011 (the date of the claim for increase).  See January 2017 rating decision and SSOC.  Because these evaluations do not represent the highest possible benefit, the issues are in appellate status and have been recharacterized as stated above.  AB v. Brown, 6 Vet. App. 35 (1993).
The AOJ also granted service connection for coronary artery disease with stable angina and history of coronary artery bypass graft, as well as service connection for sternotomy and upper abdominal operative scars in the January 2017 rating decision; the Veteran has not expressed disagreement with that determination.  See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997); see also February 2017 rating decision (AOJ addressed Veteran’s reconsideration request as to that disability).
The Board also notes that the Veteran indicated in a written statement accompanying his October 2013 substantive appeal that he did not wish to pursue an appeal on the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), and he limited his appeal to other issues, as discussed in the September 2016 Board decision.  He has not raised the issue of entitlement to TDIU since that time.  As such, that issue is not before the Board.
The Veteran was provided a VA examination in December 2016 (with an addendum in January 2017) for his right shoulder and lumbar spine claims in response to the Board’s remand.  Although the examination and addendum were mostly responsive to the remand directives, the examiner did not provide the passive range of motion findings or otherwise indicate that the passive range of motion findings were the same as the active range of motion findings in the examination report.  Therefore, a remand is required to ensure compliance with the prior remand.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order) and Correia v. McDonald, 28 Vet. App. 158 (2016).
The case is REMANDED for the following actions:
1.  The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right shoulder osteoarthritis.  Any studies, tests, and evaluations deemed necessary by the examiner should be performed.
The examiner is requested to review all pertinent records associated with the claims file.
It should be noted that the Veteran is competent to attest to factual matters of which he 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.
The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  In particular, the examiner should provide the range of motion of the right and left shoulders in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing.  If the range of motion findings are the same on both active and passive motion, the examiner should note that finding in the report.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation for this determination in the report.
The examiner should state whether there is any form of ankylosis; malunion, recurrent dislocation, fibrous union, nonunion (false flail joint), or loss of head (flail shoulder) of the humerus; or, any impairment of the clavicle or scapula.
The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion).
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
2.  The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lumbar spine degenerative disc disease.  Any studies, tests, and evaluations deemed necessary by the examiner should be performed.
The examiner is requested to review all pertinent records associated with the claims file.
It should be noted that the Veteran is competent to attest to factual matters of which he 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.
The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing.  If the range of motion findings are the same on both active and passive motion, the examiner should note that finding in the report.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation for this determination in the report.
The examiner should state whether there is any form of ankylosis.  He or she should also state the total duration of any incapacitating episodes over the past 12 months and identify any neurological manifestations of the disability.
The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion).
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
3.  The AOJ should review the examination report to ensure that it is in compliance with this remand.  If the report is deficient in any manner, the AOJ should implement corrective procedures.  
4.  After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.
 
J.W. ZISSIMOS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Postek, Counsel

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