Citation Nr: 1800817 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 10-40 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left shoulder disability (claimed as chronic pain in shoulders), to include as secondary to a service-connected disability. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for any spine disability (claimed as an upper back condition), to include as secondary to a service-connected disability. 4. Entitlement to an initial rating in excess of 20 percent for a right shoulder strain with arthritis from October 14, 2008, in excess of 30 percent from March 18, 2009, and in excess of 40 percent from August 27, 2009. REPRESENTATION Appellant represented by: Penelope Gronbeck, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Monrose, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February and November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal was before the Board in January 2014 and remanded for further development. Three out of four issues are remanded again for further development because of lack of compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268 (1998). In October 2013, the Veteran and his spouse testified before a now-retired Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. The Veteran was scheduled to present testimony at a Travel Board hearing before a Veterans Law Judge in September 2017. However, the Veteran failed to report to the hearing. As the record does not contain an explanation as to why the Veteran failed to report to the hearing, or a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704(d) (2017). The issues of service connection for a left shoulder disability, cervical spine disability, and non-cervical spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Beginning October 14, 2008, the Veteran's right shoulder strain caused limitation of motion at shoulder level and had flare-ups during activities like long drives, lying on his right side, and lifting objects over seven pounds. 2. Beginning March 18, 2009, the Veteran's right shoulder strain caused limitation midway between his side and shoulder level and had an impact on his employment capacity and daily activities. 2. Beginning August 27, 2009, the Veteran's right shoulder had a range of motion of up to 25 degrees from his side and is rated at the highest schedular rating for Diagnostic Code 5201. CONCLUSIONS OF LAW 1. Beginning October 14, 2008, the criteria for a rating in excess of 20 percent for the Veteran's right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7 38 C.F.R. § 4.104, Diagnostic Code 5201 (2017). 2. Beginning March 18, 2009, the criteria for a rating in excess of 30 percent for the Veteran's right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7 38 C.F.R. § 4.104, Diagnostic Code 5201 (2017). 3. Beginning August 27, 2009, the criteria for a rating in excess of 40 percent for the Veteran's right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7 38 C.F.R. § 4.104, Diagnostic Code 5200, 5201, 5202 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Right shoulder The Veteran contends that he is entitled to a higher evaluation for his service-connected right shoulder disability throughout the rating period. For the reasons stated below, the Board disagrees. The United States Court of Appeals for Veterans Claims has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.4. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995). By way of background, the Veteran was rated under Diagnostic Code 5201 as follows: 20 percent from October 14, 2008; 30 percent from March 18, 2009; 40 percent from August 27, 2009. Under diagnostic code 5201, a 20 percent rating is assigned for limitation of motion at shoulder level. A 30 percent rating is assigned for limitation of motion midway between side and shoulder level. A 40 percent rating is assigned for a limitation of motion when the arm extends up to 25 degrees from the side. Id. From October 14, 2008 to March 17, 2009 The Veteran's right shoulder strain was properly rated at 20 percent prior to March 18, 2009. The Veteran had a VA examination in January 2009. The Veteran's range of motion for his right shoulder was as follows: forward flexion 0 to 100 degrees, abduction 0 to 90 degrees, adduction 0 to 30 degrees, internal and external rotation 0 to 90 degrees. During this period the Veteran reported that he did not use an assistive device and his disability did not affect his job or activities of daily living. Id. The Veteran experienced flare-ups during cold and warm temperatures, when lifting objects weighing seven to eight pounds, driving an automobile for more than two hours, and lying on his right side for more than a few minutes. Id. As a result of his flare-ups, the Veteran has an additional five percent limitation of function when attempting to complete his daily activities. Id. There was no crepitation on active and passive range of motion of both the shoulder joints. Id. The Board finds that the Veteran's claim for an increased rating for his right shoulder strain in excess of 20 percent for the period prior to October 14, 2008 is denied. The evidence of record does not support a 30 percent rating for the Veteran's right shoulder strain prior to October 14, 2008. There is no evidence of record which shows that the Veteran had a limitation of motion midway between his side and shoulder level during the first rating period. Thus, a rating of 30 percent is not appropriate. The Veteran's increased rating claim for a right shoulder strain prior to October 14, 2008 is denied. The Board finds the January 2009 medical opinion to be highly probative on the issue of an increased rating, because it was given based on all of the pertinent information in the case, and the accurate facts were before the examiner. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (West 2012); 38 C.F.R. § 3.102; Gilbert v. Lewinski, 1 Vet. App. 49, 53-56 (1990). From March 18, 2009 to August 26, 2009 The Veteran's right shoulder strain was properly rated at 30 percent from March 18, 2009 to August 26, 2009. The Veteran had a VA examination in April 2009. During this period, the Veteran's range of motion for his right shoulder was 0 to 40 degrees in measuring forward flexion, shoulder abduction, shoulder external and internal rotation. Id. "All of the ranges of motion were limited by pain and the point in range of motion that the pain began was at the 40 degree mark for all four ranges of motion." Id. The Veteran denied that he had flare-ups. Id. Moreover, the Veteran did not experience fatigue, weakness, or lack of endurance with repetitive testing. Id. Nonetheless, the Veteran's disability has a mild effect on his employment capacity and activities of daily living because he could not move his arm very well. Id. The Veteran's range of motion was consistent with a limitation of motion midway between his side and shoulder level. The Veteran's claim for a rating in excess of 30 percent from March 18, 2009 to August 26, 2009 is not warranted. The evidence of record does not support a 40 percent rating for the Veteran's right shoulder strain from March 18, 2009 to August 26, 2009. There is no evidence of record which shows that the Veteran had a limitation of motion where his arm extends up to 25 degrees from the side during the second rating period. Thus, a rating of 40 percent is not appropriate. The Veteran's increased rating claim for a right shoulder strain from March 18, 2009 to August 26, 2009 is denied. The Board finds the April 2009 medical opinion to be highly probative on the issue of an increased rating, because it was given based on all of the pertinent information in the case, and the accurate facts were before the examiner In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (West 2012); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. After August 27, 2009 In the September 2016 VA examination report, the Veteran was diagnosed with a right shoulder strain and acromioclavicular joint osteoarthritis. The Veteran is currently serviced connected at 40 percent effective August 27, 2009 under Diagnostic Code 5201. The Veteran is receiving the highest possible rating under Diagnostic Code 5201. The Board will now consider whether the Veteran is entitled to a higher rating under other Diagnostic Codes. A higher rating under Diagnostic Codes 5200 and 5202 is not warranted. Under Diagnostic Code 5200, the Veteran would need to present with unfavorable ankylosis of scapulohumeral articulation to get a 50 percent rating. He does not have ankylosis. Under Diagnostic Code 5202, the Veteran would need to present with the fibrous union of the humerus, and he does not. The Board finds that a higher rating is not warranted under any analogous codes. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (West 2012); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER Entitlement to an initial rating in excess of 20 percent for a right shoulder strain with arthritis from October 14, 2008 is denied. Entitlement to a rating in excess of 30 percent for a right shoulder strain from March 18, 2009 is denied. Entitlement to a rating in excess of 40 percent for a right shoulder strain from August 27, 2009 is denied. REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so as that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Records The Board directed the RO to obtain the Veteran's VA and private treatment records in the January 2014 remand. The Veteran provided a release for medical records from Dr. G., but he did not provide an address and dates of medical treatment. The RO attempted to find Dr. G., but was unable to locate his office. VA's duty to assist requires VA to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate the claimant's benefit claim. 38 U.S.C. § 5103A(a)(1). The Veteran should be contacted again to obtain Dr. G. full name and current address, as well as dates of medical treatment. Left Shoulder In the January 2014 remand order, the Board directed the RO to schedule the Veteran for an examination and obtain an opinion whether the Veteran's left shoulder disorder was related to his military service or caused or aggravated by his service-connected right shoulder disability. The Veteran was provided with an examination in September 2016. However, the examiner did not provide an opinion regarding the etiology of the Veteran's left shoulder disorder. In addition, the remand order noted that the Veteran's June 1977 and September 1977 enlistment examinations showed that the Veteran had an abnormality in his upper extremity. The examiner was asked to provide an opinion on whether the Veteran's left shoulder disorder increased in severity during service. The examiner failed to provide such an opinion. Thus, the September 2016 VA examination report is inadequate. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, when VA undertakes to obtain a medical opinion, it must ensure that the medical opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the foregoing, the Board finds that the medical opinion provided in connection with the September 2016 VA examination does not substantially comply with the January 2014 remand order. As such, a supplemental addendum opinion-based on a full review of the record and supported by stated rationale-is needed to fairly decide the issue on appeal. See 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159 (2016); McLendon v. Nicholson, 20 Vet. app. 79, 83 (2006). Cervical spine The January 2014 remand order also called for an opinion regarding whether the Veteran's cervical spine disorder was caused or aggravated by the Veteran's service-connected right shoulder disorder. The Veteran was provided with an examination in September 2016. The VA examiner failed to provide an opinion regarding whether the Veteran's cervical spine disorder was secondary to his right shoulder disability. In addition, the examiner unsuccessfully searched the Veteran's Service Treatment Records (STRs) for an in-service neck injury in August 1977, but the remand order did not reference an August 1977 neck injury. The remand order noted that the Veteran had a spontaneous onset of neck pain around March/April 1978 while participating in a boxing exercise. The examiner did not provide a rationale for the negative nexus opinion other than stating that the Veteran did not have an injury in August 1977. An opinion is also needed regarding whether the Veteran's cervical spine disorder is related to service. The examiner was asked to consider the Veteran's lay assertions regarding the continuity of symptoms, but instead noted that another physician accepted the Veteran's assertions as true. It is unclear if the September 2016 examiner agreed with the other physician. An opinion regarding the Veteran's assertions should be provided. The September 2016 VA opinion was inadequate and not in compliance with the remand directive under Barr and Stegall. An addendum opinion is needed consistent with this order. Any non-cervical spine disorder - lumbosacral strain The Veteran was diagnosed with having a lumbosacral strain in the September 2016 VA examination. The January 2014 remand order asked the examiner to consider the Veteran's assertions regarding continuity of symptoms since leaving the military. The examiner stated that the Veteran's assertions related to his upper back while he has a lower back condition. The Veteran has had numerous complaints of low back pain for which he sought medical treatment. See medical records dated June 2009, November 2010, and June 2011 at Philadelphia VAMC and in June 2012 in private treatment records from Dr. P.'s office. The examiner should consider his complaints over the years in determining if the Veteran's condition is related to service, his cervical spine condition or his service-connected right shoulder disability. In discussing whether the Veteran's lumbosacral strain is related to service, the examiner noted that the Veteran did not have a non-cervical spine condition in August 1977. The remand order did not indicate that such a condition was noted in August 1977, but instead referenced a back spasm in 1976, a spine abnormality on the Veteran's June 1977 and September 1977 enlistment examinations, and an incident in August 1979. Assessments of the Veteran's low back claim should not include any reference to August 1977. The September 2016 VA examination is inadequate and not in compliance with the remand directive under Barr and Stegall. An addendum opinion is needed consistent with this order. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to obtain the full name and recent address for Dr. G. The Veteran should be instructed to complete a release authorizing the VA to request his private medical records from Dr. G., which includes the period of treatment. 2. Obtain an addendum opinion from the same examiner who conducted the September 2016 VA examination to ascertain whether the Veteran clearly and undebatably experienced a left shoulder disability prior to beginning active duty in August 1977. (Identify all evidence that undeniably proves pre-existence). If so, is it clear and undebatable that the disability underwent no permanent increase in severity during service. In addition, the examiner should determine whether it is at least likely as not (i.e., a 50 degree of probability) that the Veteran's left shoulder disorder is related to his military service. If that examiner is unavailable, the appellant should be afforded a new examination. The examiner is asked to review all pertinent records associated with the claims file. Finally, the examiner should ascertain whether it is at least likely as not (i.e., 50 percent degree of probability) that the Veteran's left shoulder disorder was caused or aggravated by the Veteran's service-connected right shoulder disability. The examiner should explain the rationale for all opinion(s) provided. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. 3. Obtain an addendum opinion from the same examiner who conducted the September 2016 VA examination to ascertain whether it is at least likely as not (i.e., a 50 degree of probability) that the Veteran's cervical spine disorder is related to his military service. The examiner should consider the Veteran's in-service neck injury around March/April 1978. If that examiner is unavailable, the appellant should be afforded a new examination. The examiner is asked to review all pertinent records associated with the claims file. In addition, the examiner should ascertain whether it is at least likely as not (i.e. 50 percent degree of probability) that the Veteran's cervical spine disorder was caused or aggravated by the Veteran's service-connected right shoulder disability. The examiner should set for the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since leaving the military. 4. Obtain an addendum opinion from the September 2016 VA examiner to address the Veteran's low back complaints over the years in determining if the Veteran's condition is related to service, his cervical spine condition or his service-connected right shoulder disability. The examiner should consider the Philadelphia VAMC records dated June 2009, November 2010, June 2011, and private treatment records from Dr. Pettis's office dated June 2012. The examiner should consider the Veteran's back spasm in 1976, a spine abnormality on the June 1977 and September 1977 enlistment examinations, and an incident in August 1979. The examiner should also consider the Veteran's low back complaints over the years in determining if the Veteran's condition is related to service, his cervical spine condition or his service-connected right shoulder disability. 5. Readjudicate the appeal. The appellant 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 2012). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs