Citation Nr: 1801703 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-18 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for left shoulder disability. 2. Entitlement to a rating in excess of 50 percent for bipolar disorder. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from January 1985 to November 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the Veteran testified before the undersigned during a Travel Board hearing at the Houston RO. A transcript of the hearing has been associated with the file. The issues of an increased rating for bipolar disorder and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if any action, on his part, is required. FINDING OF FACT The Veteran's left (minor) shoulder disability is manifested by pain and limitation of motion; limitation to 25 degrees from the side is not shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the Veteran's left (minor) shoulder disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes (Code) 5200 - 5203 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Additionally, painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's service-connected left (minor) shoulder disability is currently rated a maximum 20 percent disabling under Code 5203 (impairment of clavicle or scapula). In September 2012 he filed a claim for an increased rating for his service-connected left shoulder disability. Shoulder disabilities are rated under Codes 5200 to 5203. The record shows the Veteran is right-handed, making the left his minor extremity. He is not shown to have ankylosis of the left shoulder (since, as shown below, the Veteran clearly has range of motion of the left shoulder), or impairment of the humerus of the left extremity; therefore Codes 5200 and 5202 do not apply in this instance. Under Code 5201, the minimum compensable rating of 20 percent is warranted where there is limitation of motion of an arm at the shoulder level. Limitation of major arm motion to midway between the side and shoulder level warrants a 20 percent rating for the minor extremity. Limitation of minor arm motion to 25 degrees from side warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a. Normal forward flexion of a shoulder is from 0 to 180 degrees, normal abduction of a shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees. 38 C.F.R. § 4.71; Plate I. During the July 2013 VA examination, the Veteran reported intermittent limitation of the range of motion of the left shoulder. He indicated that he has some limitation on lifting and carrying. He reported that he takes tramadol for pain. He denied any flare-ups. Range of motion revealed left shoulder flexion to 150 degrees with pain beginning at 140 degrees. Left shoulder abduction was to 130 degrees, with pain beginning at 120 degrees. The Veteran was able to perform repetitive testing with 3 repetitions; and there was no change in the range of motion. Muscle strength testing revealed 4/5 for shoulder abduction and 5/5 for left shoulder forward flexion. No ankylosis was found. The examiner indicated that the left shoulder did not impact the Veteran's ability to work; and that he was currently on disability because of a mental condition. At the October 2017 hearing the Veteran testified that he continues to have a lot of pain as well as limited motion. The Board acknowledges that the Veteran has consistently complained of left shoulder pain and limited motion during the appeal period. Nonetheless, at no time is motion shown to 25 degrees from the side (or approximating such level). Accordingly, a higher rating for the left shoulder disability under Code 5201(arm limitation of motion) is not warranted. The Federal Circuit Court has held that the plain language of 38 C.F.R. § 4.71a confirms that a Veteran is only entitled to a single disability rating under Code 5201 for each arm that suffers from limited motion at the shoulder joint. The Code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to "limitation of motion of" the arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating for the left shoulder disability. See DeLuca, 8, Vet. App. 202. VA examination established the Veteran had pain on motion of his left shoulder. Such pain, however, is not shown to have caused restriction warranting an increased rating, and is contemplated by the 20 percent rating assigned. Significantly, the 2013 examiner noted that objective evidence of painful motion began at 140 degrees flexion and at 120 degrees abduction. Thus, the examiner found that the Veteran had fairly full range of motion without objective evidence of pain. Also, the Veteran reported to the 2013 examiner that his pain and limited motion was "intermittent." He denied flare-ups. For these reasons, the preponderance of the evidence does not show left shoulder limitation warranting a rating in excess of the 20 percent assigned. The Board has considered the applicability of principles set forth in a recent Court of Appeals for Veterans Claims (Court) case, Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds no basis under that case for remanding for a new examination. The Board notes that the Correia case involved a claim for an increased rating for knee disorders, as opposed to the current case which involves a left shoulder disability. In Correia, the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59, which reads: "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint." Specifically, the Court held "that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." The Court also stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." The Court provided two qualifications to this requirement. First, it "trust[ed] that its decision today will be taken as requiring the range of motion testing listed in the final sentence of § 4.59 in every case in which those tests can be conducted." The Court specifically found that it was not competent to determine "whether upper extremities are or can be weight-bearing," though it did find that knees were "undoubtedly weight-bearing." In a later footnote, the Court "le[ft] it to medical professionals to determine whether the listed range of motion testing can be performed on the joints at issue in a particular case." Second, the Court indicated that range of motion testing of the opposite joint does not apply "for joints that do not have an opposite or whose opposite is also damaged." Although the Court did not define "damaged" for these purposes, it noted that both of the appellant's knees were "damaged." The record shows that the appellant in Correia had knee diagnoses that included both traumatic arthritis and degenerative joint disease. The Court in Correia held, in essence, that to be adequate, an examination of a joint must include range of motion testing of the joint in the following areas: active motion, passive motion, weight-bearing, and non-weight bearing. The Board initially notes, however, that the Correia case is less applicable in the case of a shoulder than in the knee. First, the Board notes that the Court did not state that upper extremities can be weight bearing. Second, the Board notes that the VA examination noted the range of motion of the left shoulder, to include the specific point at which painful motion begins. Although the VA examination in this case did not specify whether the examination was done with active motion or passive motion, or with weight bearing or non-weight bearing, the Board finds that this is inconsequential under the facts of this case. The Board takes notice that on VA examinations, the testing of the range of shoulder motions is generally done by assessing active motion rather than passive. The "active" motion is tested by having the Veteran attempt to move his arm to measure his flexion, abduction, and external rotation. This testing is considered to be testing on weight bearing as the Veteran must support the weight of his arm while undergoing such testing. Although it may possible to test passive motion without weight bearing by having the examiner move the arm, such testing would not reveal useful information. In this regard, active range of motion testing produces range of motion produces test result figures which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examination that involved active range of motion testing on weight bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. As discussed above, for the Veteran to be awarded a higher disability rating for his left shoulder disability, he had to have ankylosis of the shoulder, impairment of the humerus, or arm limitation of motion to 25 degrees from the side. The VA examiner specifically noted that there was no ankylosis, or impairment of the humerus. Further, range of motion was essentially normal. Therefore, remand for compliance with Correia would result in delay without additional benefit flowing to the Veteran, and is thus inappropriate. Soyini v. Principi, 1 Vet. App. 540, 546 (1991). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 20 percent for left shoulder disability is denied. REMAND The Board acknowledges that the Veteran has been afforded a VA examination to evaluate his service-connected bipolar disorder in July 2013. During the VA examination, it was noted that his psychiatric symptoms were relatively stable. During the October 2017 hearing, the Veteran and his wife testified that his symptoms had increased in severity. Indeed, they indicated the Veteran experiences unprovoked irritability. He sometimes goes off on tangents. He has mood swings with intense anger. The Veteran also noted that his medication has been increased. As it has been over four years since the examination, the Board is concerned the evidence of record may not accurately reflect the current nature and severity of this disability. Moreover, the Veteran has described symptoms that suggest the disability may have increased in severity since his last examination. Consequently, the Board concludes that a contemporaneous examination is needed in order to make an informed decision regarding the current level of functional impairment and adequately evaluate his current level of disability for his service-connected bipolar disorder. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). Relevant to the TDIU claim, the Board notes the TDIU issue is "inextricably intertwined" with the resolution of the increased bipolar disorder rating claim on appeal here, and therefore, it must be fully decided prior to adjudication of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain and associate all outstanding treatment records relevant to the Veteran's psychiatric disability since August 2013. 2. The Veteran should be afforded a new VA examination to evaluate his bipolar disorder. The claims folder should be made available to the respective examiner for review before the examination. All indicated tests and studies should be conducted at the respective examination. 3. If the benefits requested on appeal are not granted to the Veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC, and provide an opportunity to respond. The case should then be returned to the Board of further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs