Citation Nr: 1802199 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-08 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial rating for rotator cuff tear, right shoulder in excess of 20 percent from December 8, 2011, to May 6, 2012; 10 percent from August 1, 2012, to November 10, 2014; and 20 percent thereafter. 2. Entitlement to a rating in excess of 10 percent for right knee medial meniscus tear with degenerative changes. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active duty from September 1986 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2012 and March 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In April 2016, the RO increased the rating for the Veteran's right shoulder disability to 20 percent, effective November 10, 2014. However, as such did not constitute a full grant of the benefit sought on appeal, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Aside from the benefit granted herein, the remaining issues are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT From August 1, 2012, to November 10, 2014, considering the Veteran's pain and corresponding functional impairment, his rotator cuff tear, right shoulder has manifested by at least limitation of motion equating to shoulder level. CONCLUSION OF LAW From August 1, 2012, to November 10, 2014, the criteria for a rating of 20 percent for rotator cuff tear, right shoulder have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks an initial rating for rotator cuff tear, right shoulder in excess of 20 percent from December 8, 2011, to May 6, 2012; 10 percent from August 1, 2012, to November 10, 2014; and 20 percent thereafter. The Veteran's shoulder disability is currently rated under Diagnostic Code 5201, which does not provide for a zero percent rating. The minimum rating under that code is 20 percent, to be assigned where there is limitation at the shoulder level. Limitation of major extremity motion to midway between the side and shoulder level warrants a 30 percent rating. Limitation of major arm motion to 25 degrees from the side warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2017). The Veteran has consistently reported popping, locking, snapping, pain, and difficulty reaching above shoulder level, with increased severity and limitation of motion upon repetitive motion and flares-ups. See, e.g., Substantive appeal (March 2014). On VA examination in November 2014, the examiner noted that motion was limited to 80 degrees, that is, below shoulder level, upon repetitive motion. In light of the Veteran's report of continued symptomatology prior to the November 2014 VA examination, the Board finds that from August 1, 2012, to November 10, 2014, the Veteran's pain and corresponding functional impairment limited motion of the right shoulder at least to shoulder level. Accordingly, a 20 percent rating is warranted from August 1, 2012, to November 10, 2014. See Burton v. Shinseki, 25 Vet. App. 1 (2011); see also Sowers v. McDonald, 27 Vet. App. 472, 481-82 (2016) (noting that while there is a 10 percent rating available for the shoulder across all diagnostic codes, a 20 percent rating is the minimum compensable rating for the shoulder for limitation of motion). The remaining issue becomes one of entitlement to a rating in excess of 20 percent for rotator cuff tear, right shoulder. The Veteran is not prejudiced by this action as it is a grant of benefits without any denial of greater benefits. The remaining issue will be addressed further in the remand section. ORDER A 20 percent rating, for rotator cuff tear, right shoulder, is granted from August 1, 2012, to November 10, 2014, subject to the laws and regulations governing the payment of monetary awards. REMAND With regard to the service-connected right shoulder and right knee disabilities, the Board finds that a new VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints 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 (or for an explanation as to why such testing cannot be conducted). See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The most recent VA examinations, which were conducted in November 2014, do not provide this information. Likewise, VA examination is needed to address functional limitations during flare-ups. According to the November 2014 VA examinations, the Veteran reported right shoulder flare-ups cause locking, difficulty lifting his arm, and difficulty weight bearing. As to the right knee, he reported that flares cause increased difficulty with stairs and inability to squat; kneel; or engage in prolonged sitting, walking, or standing. Neither November 2014 VA examination was conducted during a flare-up, and the VA examiners did not estimate the loss of function during flare-ups. Accordingly, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran's descriptions of his additional loss of function during flare-ups, information gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. The Veteran's claim for TDIU is also remanded, as it is inextricably intertwined with his claims for increased ratings. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the severity and the impact of his service-connected disabilities on his ability to work. 2. Obtain any outstanding VA treatment records. 3. Then, arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected right knee and right shoulder disabilities. The joints involved must 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. The examiner is also to describe e all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner is to ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner is to estimate the functional loss (in terms of lost range of motion) based on all the evidence of record. If for any reason the examiner is unable to conduct 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. 4. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017). Department of Veterans Affairs