Entitlement to an evaluation in excess of 10 percent for right shoulder impingement syndrome prior to February 14, 2011, and in excess of 20 percent thereafter, is remanded.

Citation Nr: 26001417 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 11-12 928 DATE: January 30, 2026 REMANDED Entitlement to an evaluation in excess of 10 percent for right shoulder impingement syndrome prior to February 14, 2011, and in excess of 20 percent thereafter, is remanded. Entitlement to an evaluation in excess of 40 percent for lumbar spine spondylosis and degenerative disc disease (DDD) for the period beginning February 14, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1979 to November 1982, January 1991 to June 1991, August 2006 to November 2007, and in the National Guard from February 2003 to June 2003. This appeal to the Board of Veterans' Appeals (Board) is from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). This appeal was most recently before the Board in September 2023, at which time it was remanded for further development-to obtain addendum retrospective opinions for the Veteran's right shoulder and lumbar spine. Unfortunately, the Board finds that those remand directives have not been completed as directed, and another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand order by the Board or the Court imposes upon the Secretary a concomitant duty to ensure compliance with the terms of the remand); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (no Stegall violation when the examiner "substantially complied with the Board's remand order"). More specifically, the Veteran underwent in-person examinations in October 2023. A review of the provided opinion shows that the examiner responded to the remand directives by stating "please refer to the appropriate DBQ [disability benefits questionnaire] for any details." The examiner provided estimated range of motion measurements during flare-ups but failed to identify which of the time periods on appeal the one set of estimates pertains to, or if they are current findings rather than the requested retrospective opinions. Further, the examination reports do not include an indication that any range of motion measurements contained therein are the requested retrospective opinions and if so, which time period they pertain to. The Veteran attended in-person examinations and it appears that the range of motion measurements and estimates are for the current severity of the Veteran's right shoulder and lumbar spine disabilities, not the requested retrospective opinions. Finally, neither the examination reports nor the opinion address the Veteran's lay statement that he has to take breaks while driving to stretch his legs, as directed by the September 2023 remand. As such, the October 2023 VA examinations and opinion are non-responsive as to the Board's remand directives, so there has not been substantial compliance with the directives, and an additional remand is required to obtain the requested opinions and to afford the Veteran full due process. See Stegall, supra. As a final matter, the Board reflects that the Veteran was noted to take Advil and Lidocaine 5% ointment for both his right shoulder and lumbar spine disabilities, as well as gabapentin for his lumbar spine disability. Since the October 2023 VA examination, the United States Court of Appeals for Veterans Claims (Court) indicated that the holding in Jones regarding discounting any ameliorative effects of medication must be considered in addressing the ratings for musculoskeletal disabilities. See Jones v. Shinseki, 26 Vet. App. 56 (2012); Ingram v. Collins, 38 Vet. App. 130 (2025) (the beneficial effects of medication used to treat a service-connected musculoskeletal disability must be discounted when the relevant rating criteria does not specifically contemplate medication use). As that October 2023 VA examiner did not provide estimates in terms of current functioning limitations that comport with Jones/Ingram, new VA examinations must be provided on remand as well. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner who has not previously participated in this case to determine the current severity of his right shoulder disability. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology should be documented. The examiner should clarify the frequency, severity, and duration of the Veteran's right shoulder symptoms, including whether the Veteran has any additional limitations during repetitive motion, repeated use over time, and/or flare-ups. The examiner must also indicate whether the Veteran uses any medications to treat his right shoulder disability, and identify what, if any, ameliorative effects that medication has on the Veteran's functioning. Then, the examiner should conduct range of motion testing, including obtaining measurements in active motion, passive motion, weightbearing, and after repetitive use, as deemed appropriate by the examiner. The examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Thereafter, the examiner must estimate the severity of the Veteran's right shoulder disability without any ameliorative effects of medication, to include over-the-counter pain relievers/prescribed medications, etc. The examiner must also provide additional estimates regarding the Veteran's functional impairment during flare-ups, repeated use over time, etc., as appropriate. If any estimate cannot be provided without resorting to 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. Schedule the Veteran for a VA examination with an examiner who has not previously participated in this case to determine the current severity of his lumbar spine disability. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology should be documented. The examiner should clarify the frequency, severity, and duration of the Veteran's lumbar spine symptoms, including whether the Veteran has any additional limitations during repetitive motion, repeated use over time, and/or flare-ups. The examiner must also indicate whether the Veteran uses any medications to treat his lumbar spine disability, and identify what, if any, ameliorative effects that medication has on the Veteran's functioning. Then, the examiner should conduct range of motion testing, including obtaining measurements in active motion, passive motion, weightbearing, and after repetitive use, as deemed appropriate by the examiner. The examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Thereafter, the examiner must estimate the severity of the Veteran's lumbar spine disability without any ameliorative effects of medication, to include over-the-counter pain relievers/prescribed medications, etc. The examiner must also provide additional estimates regarding the Veteran's functional impairment during flare-ups, repeated use over time, etc., as appropriate. If any estimate cannot be provided without resorting to 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). Finally, the examiner must discuss any and all neurological complications associated with the Veteran's thoracolumbar spine disability; if such are identified, the appropriate separate disability benefits questionnaire to address those complications must also be completed. 3. After completion of the above, the AOJ should obtain an addendum opinion, from an examiner who has not previously provided an opinion concerning the Veteran's right shoulder (asking the examiner who conducted the above examination is fine), to provide a retrospective estimate for the Veteran's right shoulder impingement syndrome with rotator cuff tendonitis (right shoulder disability) for each period on appeal, including any periods of increased or decreased severity that may or may not have already been identified. The Board highlights that the period on appeal runs from October 27, 2007 (the date the claim was filed) to the present. The examiner must specifically address the following: In providing the below requested retrospective opinions, the examiner must use the record, including prior statements by the Veteran and any additional records that are relevant. (a) The examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should provide a retrospective estimate as to the range of motion and pain of the opposite joint (if there is one) in active motion, passive motion, weightbearing, and non-weightbearing. (b) The examiner must describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. (c) If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically, including when providing retrospective estimates. 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, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. In addressing the above limitations of functioning, the examiner must provide those estimates of the Veteran's right shoulder disability without consideration of any ameliorative effects of medication, to include over-the-counter pain relievers/prescribed medications, etc. If the examiner is unable to provide the requested opinion(s) or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Specifically, the examiner shall opine if the inability to provide the requested opinion(s) is due to a lack of the examiner's knowledge or a lack of knowledge within the medical community as a whole. 4. After completion of the above, the AOJ should obtain an addendum opinion, from an examiner who has not previously provided an opinion concerning the Veteran's lumbar spine (asking the examiner who conducted the above examination is fine), to provide a retrospective estimate for the Veteran's lumbosacral spondylosis and degenerative disc disease of the lumbar spine, lumbar muscle, and left paracentral disc at L3-L4 (lumbar spine disability), at the time of the October 2013 VA lumbar spine examination. The examiner must specifically address the following: In providing the below requested retrospective opinions, the examiner must use the record, including prior statements by the Veteran and any additional records that are relevant, including but not limited to the Veteran's statement(s) of flare-ups due to prolonged time in a sitting or standing position, including his need to take a break from driving to stretch his legs. (a) The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should provide a retrospective estimate as to the range of motion and pain of the opposite joint (if there is one) in active motion, passive motion, weightbearing, and non-weightbearing. (b) The examiner must describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. (c) If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically, including when providing retrospective estimates. 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, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. In addressing the above limitations of functioning, the examiner must provide those estimates of the Veteran's lumbar spine disability without consideration of any ameliorative effects of medication, to include over-the-counter pain relievers/prescribed medications, etc. If the examiner is unable to provide the requested opinion(s) or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Specifically, the examiner shall opine if the inability to provide the requested opinion(s) is due to a lack of the examiner's knowledge or a lack of knowledge within the medical community as a whole. MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.