Citation Nr: 1800093 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-42 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating higher than 10 percent for the residuals of left shoulder repair. 2. Entitlement to a compensable rating for scar of the left shoulder, related to left shoulder repair. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from October 1968 to September 1970. This appeal to the Board of Veterans' Appeals (Board) is from an April 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2016, the Veteran had a personal hearing before the undersigned VLJ. During the hearing, the Veteran complained of a painful scar, associated with his shoulder. Accordingly, the Board has taken jurisdiction over the issue of whether he is entitled to an increased rating for that scar as intertwined with his shoulder claim. In this decision, the Board is granting an increased rating for the left shoulder and left shoulder scar. These issues require additional development and are also REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In resolving all doubt in his favor, his left shoulder manifests with painful motion limited to shoulder level. 2. His associated scar is painful. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for the left shoulder are met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1, 4.59, 4.71a, DCs 5201, 5003 (2017). 2. The criteria for a 10 percent rating for left shoulder scar are met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1, 4.118, DCs 7804 and 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's left shoulder is rated as 10 percent disabling under DC 5201-5003. See 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning hyphenated ratings). DC 5003 pertains to degenerative arthritis, and is rated according to the criteria for limited motion. When there is no limited motion, a minimum 10 percent is assigned for each major joint. 38 C.F.R. § 4.71a, DC 5003. DC 5201 pertains to limited motion of the left shoulder. Under this code, limited motion to shoulder level is rated 20 percent disabling for both the major and minor extremities; to midway between side and shoulder level, a 30 percent rating is warranted for the major extremity and a 20 percent rating for the minor extremity; and, to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and 30 percent for the minor extremity. 38 C.F.R. § 4.71a, DC 5201. Normal flexion of the shoulder is from 0 to 180 degrees and normal abduction is 0 to 180 degrees. 38 C.F.R. § 4.71a, Plate I. He argues that he is entitled to a higher rating, asserting he has weakness and pain, and cannot use his arm the way he used to because of the pain. He tries to limit using that arm so as to hurt it even more. He asserts his functional loss entitles him to a higher rating. The Board agrees. Any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness is compensable and must be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40 and 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). After review of the evidence, the Board finds that he is entitled to at least a 20 percent rating for his left shoulder. During his hearing, he reported constant pain that cannot be helped, and frequent weakness. The record shows that he has attended physical therapy for his left shoulder in 2012, and that he had a hard time using his arm. He would keep his arm in a flexed and adducted position so as not to aggravate his pain. At the April 2013 VA examination, he had reduced range of motion, localized tenderness and guarding, as well as pathology of the AC joint and the rotator cuff, along with arthritis. He complained of flares when performing overhead activities, however, the examiner opined that he could not estimate the functional loss during flares. Nonetheless, the Board finds that the Veteran has sufficiently shown that he is entitled to an immediate increase and that his symptoms more closely approximate the criteria for a 20 percent rating, since receipt of his claim. On remand, the evidence will be developed, therefore further discussion is not required. As mentioned above, the Board has taken jurisdiction over the issue of the rating assigned to the scar associated with his left shoulder. He has provided credible testimony that it is painful. Accordingly, the Board grants an increased 10 percent under DC 7804, which pertains to painful or unstable scars. This issue will also be developed on remand, therefore further discussion is not required. ORDER A 20 percent rating is granted for status post left shoulder repair, effective December 8, 2011. A 10 percent rating under DC 7804 is granted for left shoulder scar, effective December 8, 2011. REMAND The Veteran has asserted that his left shoulder symptoms have increased. He has not been examined since April 2013. Further, the Board notes the VA examiner at that time indicated that an opinion on functional loss during flares could not be rendered as the Veteran was not currently experiencing a flare. This is an inadequate opinion, and requires clarification. Accordingly, the case is REMANDED for the following action: 1. Ensure updated VA treatment records are associated with the claims file. 2. Schedule the Veteran for an updated VA examination for a report on the current severity of his left shoulder. Conduct range of motion testing, and indicate the point at which motion pain is objectively observed. The examiner is asked to test range of motion in active motion and passive motion, in both weight-bearing and non-weight-bearing positions. If the examiner is unable to conduct the required testing or concludes that the required testing is not capable of being conducted, he or she should clearly explain why that is so. The examiner is asked to describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, or is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner is also asked to elicit from the Veteran a detailed history of his symptoms during flares and after repeated use, including estimates of additional loss of motion, which can be used to inform such an opinion. The examiner is asked to provide an opinion on whether it is as likely as not (at least 50 percent probability) that the Veteran's functional loss closely approximates having limited motion of the arm to midway between the shoulder and arm, or 25 degrees from his side? The Veteran has complained of frequent flares, and attempt should be made to schedule the examination during a flare. However, the examiner is advised that direct observation of impairment during a flare is not a prerequisite to offering an opinion. Therefore, to reiterate, it is essential that the examiner elicit from the Veteran details regarding his flares, including their frequency and their impact on his function. All opinions must be supported by explanatory rationale. 3. Obtain an updated VA examination report on the current severity of his left shoulder scar. 4. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs