Citation Nr: 1329762 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-00 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for right shoulder glenohumeral arthritis with recurrent dislocations. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). (The issues of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder, including anxiety, and entitlement to service connection for a psychiatric disorder, including anxiety and depression, to include as secondary to the service-connected right shoulder disability, are addressed in a separate decision.) REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active military service from September to November 1968. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for right shoulder glenohumeral arthritis with recurrent dislocations and assigning an initial 30 percent rating for this disability retroactively effective from February 23, 2005. The Veteran wants a higher initial rating for this right shoulder disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been variances in the severity of the disability, in other words, times when it has been worse than at others). In August 2009, the Veteran testified at a hearing at the RO before one of the undersigned Veterans Law Judges of the Board (Travel Board hearing). A transcript of the proceeding is of record. In October 2010, the Board remanded the claim for an initial rating higher than 30 percent for the right shoulder disability for further development. Also, because the Veteran had testified during his August 2009 Travel Board hearing that he had been let go from his previous job because of this service-connected right shoulder disability, the Board determined that the additional issue of derivative entitlement to a TDIU had been reasonably raised by the record and was part and parcel of the claim for an increased rating for the right shoulder disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the Board assumed jurisdiction over the derivative TDIU claim. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011). In February 2013, while these claims were on remand, the Veteran testified at another Travel Board hearing before one of the other undersigned Veterans Law Judges. A transcript of that proceeding also is of record. The testimony during that additional hearing also concerned an additional claim - for service connection for a psychiatric disorder. The Veteran consequently has testified at two separate hearings before two different Veterans Law Judges, both of whom however are deciding this case. Accordingly, this appeal must be addressed by a panel, which includes the Veterans Law Judges who presided over the hearings. See 38 C.F.R. § 20.707 (2012). Claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Realizing this, the Veteran was contacted and given the opportunity to have yet another hearing before the Board, this time with a third Veterans Law Judge. But in July 2013, in response, the Veteran indicated he did not want another hearing, so waived this right. In March 2013, the Veteran submitted a private medical statement from D.I.C., M.D., dated in March 2013, which is pertinent to the claims that are on appeal. He waived his right to have the RO, as the Agency of Original Jurisdiction (AOJ), initially consider this additional evidence, preferring instead to have the Board do so in the first instance. 38 C.F.R. § 20.1304(c). The claims require further development before being decided on appeal, however, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Pursuant to the Board's prior October 2010 remand, the Veteran had a VA compensation examination in November 2010 to assess the severity of his service-connected right shoulder disability. But that was nearly 3 years ago, and while since testifying during his February 2013 Travel Board hearing he maintained that his right shoulder symptoms had continued to worsen even since that November 2010 VA examination. He indicated that the level of his pain is now often 10/10 (on a scale of 1-10, with 10 being the worst), and that he can no longer move his right shoulder at all, indeed, so limited in his range of motion that his private and VA doctors reportedly have told him this shoulder is for all intents and purposes totally "useless". He added that he cannot do surgery, so has just learned to live with it, that he cannot even sleep on this shoulder, and that, despite any suggestion he still has some range of motion in this shoulder, it is accompanied by "intense pain, catching, and what not." He took exception with many of the November 2010 VA examiner's findings, asserting there was not any X-ray or MRI of his right shoulder or nerve test. He therefore needs to be reexamined to reassess the severity of this disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the Veteran's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See, too, Green v. Derwinski, 1 Vet. App. 121 (1991) and VAOPGCPREC 11-95 (April 7, 1995). Regarding the absence of any nerve testing during his November 2010 VA compensation examination, the Veteran also testified during his February 2013 Travel Board hearing that he had a "burning sensation" in his right shoulder or what is perhaps better described as numbness and tingling in his right shoulder radiating down his right arm. Aside from tenderness and inflammation, he said there was "bone on bone". Separate ratings may be assigned for separate and distinct manifestations of the same injury. See Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.55(a) (2012). He may not be twice compensated for the same symptom, however, as this would violate VA's anti-pyramiding regulation. See 38 C.F.R. § 4.14. The RO/AMC has not considered whether the Veteran experiences any neurological impairment as a result of his service-connected right shoulder disability, so there needs to be consideration of whether a separate rating is warranted for this alleged additional disability. As for the derivative TDIU claim, the Veteran contends that his service-connected right shoulder disability prevents him from engaging in any type of substantially gainful employment. And because a medical opinion was needed concerning this, the Board remanded this derivative TDIU claim in October 2010. As the Court had stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), and as the Board had pointed out and acknowledged when remanding this derivative claim, the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The resultant VA compensation examination in November 2010 therefore was partly also to obtain this necessary medical opinion. According to the Veteran, he only has a fifth-grade education. He says his last job was in maintenance and lifting furniture. The VA examiner noted the Veteran's non-service-connected disabilities included coronary artery disease (CAD) and chronic obstructive pulmonary disease (COPD), and the examiner determined that, if only considering the Veteran's service-connected right shoulder disability, he is "not unemployable." In explanation, the examiner conceded that, "obviously," a physical type of job requiring use of the right upper extremity would be contraindicated. But he concluded the Veteran could work with his left upper extremity and, therefore, that some type of employment using his left upper extremity mainly was possible. The examiner indicated that, "obviously," a more sedentary job would be more suited for the Veteran, but that he nonetheless was still employable. The examiner added the Veteran should consult with his primary care provider, however, before starting any type of job. During his February 2013 Travel Board hearing the Veteran emphasized that he only had worked as an "odd job laborer" since his military service, and even then had limitations so could not do all that was required of him. He therefore disputed any notion that he is equipped to work in any other capacity, certainly not a sedentary job like the VA compensation has suggested. The November 2010 VA compensation examiner all but accepted that the Veteran can only return to the workforce if allowed some measure of accommodation. Thus, the question immediately raised is whether any such employment would indeed amount to substantially gainful employment and not just marginal employment in comparison. 38 C.F.R. §§ 4.16(a), 4.18. Supplemental medical comment thus is needed to assist in making this necessary determination, particularly insofar as whether there is still realistic employment opportunity given the Veteran's level of education, prior work experience and training in jobs that apparently have been entirely physically demanding, not sedentary. In March 2013, the Veteran submitted a private medical statement from Dr. D.I.C. in support of his TDIU claim. In the statement, which is also dated in March 2013, Dr. C. explained the Veteran had chronic right shoulder pain that was alleviated by Percocet. But according to Dr. C., the Percocet caused the Veteran in turn to be "excessively sleepy." Dr. C. resultantly concluded the Veteran was unable to work either from the right shoulder pain or from the sleepiness. Given that this statement was submitted after the November 2010 VA examination, the examiner who performed that November 2010 VA examination did not have opportunity to consider it and comment on whether he agreed or disagreed with this other doctor's opinion. Hence, supplemental medical comment also is required because of the submission of this additional evidence coming to a contrary conclusion regarding the Veteran's employability. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Make arrangements with the appropriate VA medical facility for the Veteran to undergo a VA orthopedic/neurological examination reassessing the severity of his service-connected right shoulder disability, including for additional opinion concerning whether he is unemployable if only considering this disability (which, at the moment, is his only service-connected disability). The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must review all of the relevant evidence of record, but especially the March 2013 private medical statement from Dr. D.I.C. offering a different perspective than the VA compensation examiner that previously evaluated the Veteran in November 2010. This additional VA examiner must also review the April 2006 letter from Mr. R.J. of the Salvation Army. In that letter, Mr. J. indicated the Veteran had worked as a Cook and Bell Ringer "off and on" for 15 years under his supervision. According to Mr. J., the Veteran was a very good employee but was limited in the type of physical work he could do because of the trouble with his right shoulder. Mr. J. indicated that, eventually, the Veteran had to leave that employment. All necessary diagnostic testing and evaluation should be performed, including X-rays, an MRI, and nerve testing if the VA examiner indicates this is necessary for proper rating of this right shoulder disability. The examiner must identify all symptoms attributable to the right shoulder disability. But, specifically, the examiner must indicate whether there is any evidence of impairment of the humerus (i.e., malunion of the right humerus with moderate or marked deformity), recurrent dislocation of the scapulohumeral joint with guarding, fibrous union of the humerus, nonunion of the humerus (i.e., false flail joint), or loss of the head of the humerus (i.e., flail shoulder). Additionally, the examiner must provide measurements of the range of motion of the Veteran's right shoulder in degrees. The examiner must note, as well, whether on prolonged or repetitive motion of this shoulder there is pain, weakened movement, premature or excess fatigability, or incoordination, and whether there resultantly is likely to be additional range of motion loss due to these factors. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the right shoulder is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function of this shoulder, this fact must be expressly noted in the report. The examiner must also note whether there is any limitation of motion of the right arm, specifically reporting whether motion stops: (1) at the shoulder level, (2) midway between the side and the shoulder level, or (3) 25 degrees or less from the side. To this end, the examiner must indicate whether there is any evidence of ankylosis (the scapula and humerus moving as one piece), and, if so, whether it is favorable (abduction to 60 degrees, can reach mouth and head), intermediate (between favorable and unfavorable), or unfavorable (abduction limited to 25 degrees from side). Further, the examiner must determine whether the Veteran has any nerve impairment (which he has variously described as numbness and tingling or a burning sensation) associated with his service-connected right shoulder disability, including radiating from the shoulder down his arm. If so, then the examiner should determine which specific nerve groups are involved and characterize the overall neurological impairment as mild, moderate, moderately severe, or severe. Moreover, the examiner must describe the impact of the Veteran's service-connected right shoulder disability on his daily activities. And in regards to the Veteran's derivative claim of entitlement to a TDIU, the examiner must indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's service-connected right shoulder glenohumeral arthritis with recurrent dislocations, alone, precludes him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience and training. In making this determination, the VA examiner must comment on the March 2013 private medical statement from Dr. D.I.C., especially in comparison to the seemingly contrary findings and conclusions of the prior VA compensation examiner in November 2010. Specifically, this more recent VA examiner must state whether he/she is in agreement with Dr. C.'s opinion that, because the Veteran takes Percocet for pain attributable to his service-connected right shoulder disability, he becomes "excessively sleepy" which prevents him from working. The VA examiner is advised that the term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. "Very likely" and "as likely as not" support the claim of unemployability, whereas "unlikely" obviously does not. It is most essential the VA examiner discuss the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file supporting conclusions. 2. After completion of the above and any other development deemed necessary, readjudicate these claims for a higher initial rating for the right shoulder disability and for a derivative TDIU in light of all additional evidence. In regards to the rating for the Veteran's service-connected right shoulder disability, consideration should be given to the awarding of additional compensation by way of a separate rating if it is determined he has neurological impairment associated with this right shoulder disability that is not already being compensated. See Esteban, 6 Vet. App. at 259. If any portion of these claims continue to be denied or not granted to his satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). Keith W. Allen Michael A. Herman Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ John Z. Jones Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).