Citation Nr: 1805386 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 11-07 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial increased disability rating in excess of 20 for intervertebral disc syndrome (IVDS), (previously rated as myofascitis and disc space narrowing and sclerosis between T11 and T12), to include whether the reduction in disability rating from 20 percent to 10 percent, effective April 1, 2013, was proper, a rating in excess of 10 percent from April 1, 2013, to July 14, 2016, and a rating in excess of 20 percent from July 15, 2016. 2. Entitlement to an initial increased disability rating for status post-surgery of C6/C7 posterolateral foraminotomy, rated as 10 percent prior to July 15, 2016, and 20 percent therefrom. 3. Entitlement to an initial increased disability rating in excess of 20 percent for status post right shoulder surgery, rotator cuff injury. 4. Entitlement to an initial increased disability rating in excess of 20 percent for status post left shoulder surgery, rotator cuff injury. 5. Entitlement to service connection for erectile dysfunction (ED). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1989 to March 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A written transcript of the hearing has been prepared and incorporated into the evidence of record. In May 2016, the Board remanded claims #1-#4 for additional development. Subsequently and pertinent to the current claims, in a December 2016 rating action, the evaluation in effect for the Veteran's cervical spine disorder was increased to 20 percent, effective July 15, 2016. The service-connected right and left shoulder disorders were each granted an evaluation of 20 percent, effective April 1, 2009. In an April 2017 rating action, the RO established an evaluation for IVDS, which was previously rated as myofascitis and disc space narrowing and sclerosis between T11 and T12 (claimed as low back condition with pain). As a result, the issue is now classified as entitlement to an initial increased disability rating in excess of 20 for IVDS, to include whether the reduction in disability rating from 20 percent to 10 percent, effective April 1, 2013, was proper, a rating in excess of 20 percent from April 1, 2013, to July 14, 2016, and a rating in excess of 20 percent from July 15, 2016. The Board observes that additional evidence consisting of private medical records reflecting treatment for chronic neck pain (with headaches) secondary to IVDS was received subsequent to the issuance of the April 2017 supplemental statement of the case (SSOC). A May 2017 waiver of initial consideration by agency of original jurisdiction (AOJ) was added to the record. Additional private evidence dated in October 2017 (also showing neck pain and headaches due to IVDS) was added to the record without waiver of AOJ consideration. 38 C.F.R. § 20.1304(c) (2017). As this evidence does not pertain to the issues of entitlement to increased ratings for the bilateral shoulder disorders, it is irrelevant to the claims decided herein. There is no prejudice to the Veteran in the Board proceeding with a decision on such matters at this time. Inasmuch as these records do reflect, to some extent, treatment for neck and low back problems, those matters are being remanded. Therefore, the AOJ will have an opportunity to review this new evidence in the first instance as to those claims. As to claim #5 (entitlement to service connection for ED), that claim was initially denied by the RO in a January 2017 rating decision. In this regard, the Veteran submitted a notice of disagreement (NOD) later that same month. However, a statement of the case (SOC) has not yet been issued. Therefore, such matter will also be addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. The following issues are addressed in the REMAND portion of this decision: entitlement to an initial increased disability rating in excess of 20 for IVDS, to include whether the reduction in disability rating from 20 percent to 10 percent, effective April 1, 2013, was proper, a rating in excess of 10 percent from April 1, 2013, to July 14, 2016, and a rating in excess of 20 percent from July 15, 2016; entitlement to an initial increased disability rating for status post-surgery of C6/C7 posterolateral foraminotomy, rated as 10 percent prior to July 15, 2016, and 20 percent therefrom; and entitlement to service connection for ED. These claims are REMANDED to the AOJ. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. Residuals of right shoulder injury with rotator cuff surgery have not been manifested by limitation of motion to midway between side and shoulder level, ankylosis, or impairment of the humerus. There is, however, pain on movement. 2. Residuals of left shoulder injury with rotator cuff surgery have not been manifested by limitation of motion to 25 degrees from the side, ankylosis, or impairment of the humerus. There is, however, pain on movement. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for status post right shoulder surgery, rotator cuff injury, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code (DC) 5201 (2017). 2. The criteria for an initial rating in excess of 20 percent for status post left shoulder surgery, rotator cuff injury, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.71a, DC 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran participated in the Benefits Delivery at Discharge program, and in November 2008 was afforded fully compliant notice in relation to his claims, to include information regarding the establishment of an effective date and of the disability rating. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b)(1) (2017); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, VA has a duty to assist the appellant in the development of the claims. This duty includes assisting in the procurement of service treatment records (STRs) and other pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's STRs, as well as post-service reports of VA and private treatment and examinations. Moreover, the Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings - In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, 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 (2017). 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 (2017). 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. 38 C.F.R. § 4.20 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent Laws and Regulations The Veteran seeks initial ratings in excess of 20 percent for his right and left shoulder disorders. Each of the shoulders is rated pursuant to DC 5201. Normal ROM of a shoulder is flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.7, Plate I (2017). Under DC 5201, limitation of motion of the arm, a 20 percent rating is assigned when there is limitation of motion of the major or minor arm at shoulder level. A 30 percent rating is warranted when there is limitation of motion of the major arm midway between the side and shoulder level. This warrants a 20 percent rating in the minor arm. A 40 percent disability evaluation is warranted when there is limitation of motion of the major arm to 25 degrees from the side. This warrants a 30 percent rating in the minor arm. 38 C.F.R. § 4.71a, DC 5201 (2017). There are several other DCs which might also be applicable. For example, under DC 5202, other impairment of the humerus, a 20 percent evaluation is warranted for impairment of the major/minor extremity caused by malunion resulting in moderate deformity, or for recurrent dislocation of the scapulohumeral joint with infrequent episodes of dislocation at the scapulohumeral joint and guarding of movement at the shoulder level. A 30 percent evaluation is warranted for impairment of the major extremity caused by malunion resulting in marked deformity or for recurrent dislocation of the scapulohumeral joint with frequent episodes of dislocation and guarding of all arm movements. This warrants a 20 percent evaluation in the minor arm. A 50 percent evaluation is assigned where there is fibrous union in the major arm, and a 40 percent evaluation is assigned where there is fibrous union in the minor arm; a 60 percent evaluation is warranted for nonunion or a false flail joint in the major arm, and a 50 percent evaluation is warranted for nonunion or a false flail joint in the minor arm; and for loss of the humeral head (a flail shoulder), an 80 percent evaluation is warranted in the major arm, and a 70 percent evaluation is warranted in the minor arm. 38 C.F.R. § 4.71a, DC 5202 (2017). Under DC 5200, favorable ankylosis of the scapulohumeral articulation where abduction is to 60 degrees and the veteran may reach his/her mouth and head warrants a 20 percent rating for the minor arm and a 30 percent rating for the major arm. Ankylosis of the scapulohumeral articulation between favorable and unfavorable warrants a 30 percent rating for the minor arm and a 40 percent rating for the major arm. Unfavorable ankylosis of the scapulohumeral articulation where abduction is limited to 25 degrees from the side warrants a 40 percent rating for the minor arm and a 50 percent rating for the major arm. 38 C.F.R. § 4.71a, DC 5200 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). The RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40 (2017), which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Entitlement to Initial Increased Disability Ratings in Excess of 20 Percent for Status Post Right and Left Shoulder Surgeries, Rotator Cuff Injuries. Background When examined for VA purposes in November 2008 (prior to discharge), it was noted that the Veteran had undergone bilateral shoulder surgeries. At this time, he reported symptoms of weakness, stiffness, giving way, lack of endurance, and pain. The Veteran's shoulder scars were well healed without complications. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, or inflammation or edema. Upon examination of the shoulders, there were no signs of edema, effusion, weakness, tenderness, redness, heat, or abnormal movement. Range of motion (ROM) of the right shoulder was flexion to 110 degrees, abduction to 110 degrees, external rotation to 40 degrees, and internal rotation to 80 degrees. ROM of the left shoulder was flexion to 160 degrees, abduction to 150 degrees, external rotation to 45 degrees, and internal rotation to 80 degrees. After repetitive use, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, incoordination, or ROM. X-rays of the right shoulder revealed a humeral head in the region of the greater tubercle that was irregular. X-rays of the left shoulder revealed an oval calcification in the soft tissue adjacent to the humeral head. The Veteran was noted to be right hand dominant. He was diagnosed with multiple episodes of surgery to the shoulders with limitation in ROM and well-healed scars. In a clarification statement from February 2009 as to whether there was diagnosis of a disability to account for the objective findings for the shoulders, the examiner included a July 2009 addendum that included a final diagnosis of status post-surgery in therapy of rotator cuff injury. Additional VA examination of the shoulder was accomplished in April 2013. At that time, it was noted that the Veteran had had a total of 5 surgical procedures to the bilateral shoulders (with the last being in 2004). He complained of pain with movement. ROM of the right shoulder was flexion to 130 degrees, abduction to 130 degrees, external rotation to 80 degrees, and internal rotation to 70 degrees. ROM of the left shoulder was flexion to 135 degrees, abduction to 90 degrees with pain, external rotation to 80 degrees with pain, and internal rotation to 70 degrees. All movements were without pain unless reported. After repetitive use, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, incoordination, or ROM. Functional loss and/or functional impairment of the shoulders and arms included less movement than normal, weakened movement, and pain on movement. X-rays of the shoulders in July 2013 showed mild acromioclavicular joint and humeral head degenerative changes; soft tissue calcification on the left that might represent calcific tendinosis or post traumatic residuals; and narrowing of the right acromion humeral space which implied probable rotator cuff impingement. Upon VA examination in July 2016, it was again noted that the Veteran was right hand dominant. ROM of the right shoulder was flexion to 80 degrees, abduction to 70 degrees, external rotation to 50 degrees, and internal rotation to 90 degrees. ROM of the left shoulder was flexion to 85 degrees, abduction to 70 degrees, external rotation to 50 degrees, and internal rotation to 90 degrees. All movements were accomplished with pain. After repetitive use, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, incoordination, or ROM. The examiner noted that the Veteran was unable to perform heavy lifting or repetitive overhead motions. X-rays of the right shoulder in July 2016 showed remote Hill-Sachs impaction fracture of the posterior lateral humeral head. There were degenerative changes in the glenohumeral joint. X-rays of the left shoulder in July 2016 showed remote impaction deformity involving the treater tuberosity and posterior lateral humeral head as well as remote avulsion fragment (similar to 2013 study). Also mild degenerative changes in the glenohumeral joint and acromioclavicular were noted. Analysis The criteria for initial evaluations in excess of 20 percent for the right or left shoulder disabilities have not been met at any time during the initial rating period on appeal, from April 1, 2009. As summarized above, at no time does the the evidence demonstrate that the Veteran has limited motion to midway between side and shoulder level in the right shoulder/arm, to warrant a rating of 30 percent in that dominant extremity. Nor does he have limitation of motion of the left arm to 25 degrees from side in the minor extremity. 38 C.F.R. § 4.71a, DC 5201 (2017). Thus, initial ratings in excess of 20 percent for either the right or left shoulder disorders are not warranted. The Board also finds review of the record reveals that the Veteran exhibited movement of the right and left shoulders throughout the appeal period as documented in the medical records and as discussed above. Therefore, DCs 5200 (ankylosis) and 5202 (impairment of the humerus) are not for application. See 38 C.F.R. § 4.71a. There are no other DCs that provide a basis to assign ratings in excess of 20 percent for either the right or left shoulder disorders. What the evidence does show is ongoing complaints of bilateral shoulder pain. Notably, the DCs ratings discussed above take into account pain and a separate rating for pain would violate the rule against pyramiding, as such would result in the evaluation of the same manifestation (pain) under different DCs. See 38 C.F.R. § 4.14 (2017). Final Considerations The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath, supra. However, after careful review of the available DCs, and consideration of the lay and medical evidence of record, the Board finds there are no other DCs that provide a basis to assign higher ratings for these issues on appeal. The Board has considered the Veteran's reported history of symptomatology for his service-connected shoulder disabilities. It is acknowledged that he is competent to report such symptoms and observations because this requires only personal knowledge as it comes through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the more probative evidence concerning the nature and extent of the Veteran's disabilities has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has also considered a higher rating in this case based on the presence of additional functional loss not contemplated in the current 20 percent evaluations for right and left shoulder disabilities based on the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, supra. However, as discussed above, the Board finds that the functional equivalent of limited motion of the right arm to midway between side and shoulder level is not shown, even when considering the Veteran's ongoing complaints of painful motion. Moreover, the functional equivalent of limited motion of the left arm to 25 degrees from side is not shown, even when considering the Veteran's ongoing complaints of painful motion. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant higher ratings for these service-connected disabilities. ORDER Entitlement to an initial increased disability rating in excess of 20 percent for status post right shoulder surgery, rotator cuff injury, is denied. Entitlement to an initial increased disability rating in excess of 20 percent for status post left shoulder surgery, rotator cuff injury, is denied. REMAND With respect to the Veteran's claims for increased ratings for IVDS and cervical spine disorders, the Veteran asserted in a May 2017 statement that he was dissatisfied with the VA examination of his spine in July 2016. Specifically, he argues that ROM measurements as recorded were not accurate. For example, he "barely move" that day but the examiner reported full ROM that day (other than forward flexion limited to 50 degrees). He added that the examiner did not use any kind of measuring device. Moreover, the Veteran claims worsening of his spine condition, as evidenced by the records added to the claims file. Under the circumstances, the Board finds that current VA examination is necessary for the purpose of ascertaining the current severity of the service-connected IVDS and cervical spine disorders. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). With regard to the Veteran's claim of entitlement to service connection for ED, as secondary to his IVDS, the Veteran submitted a NOD with the January 2017 rating decision that denied the claim. To date, however, the RO has not issued a SOC regarding this particular issue in response to the Veteran's NOD. Therefore, remand is necessary to cure this defect. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2017); see also Manlincon v. West, 12 Vet. App. 238 (1999). The RO should return the claims file to the Board with respect to this particular issue only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his IVDS and cervical spine conditions, on appeal. Any records that are not currently included in the claims file should be obtained and added to the file. With any necessary authorization from the Veteran, the AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and Veteran is to be informed of such. 2. Following completion of the above, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected IVDS. The claims folder must be made available to the examiner in conjunction with the examination. The examination report should comply with all appropriate protocols for rating spine disabilities. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the thoracic spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. To the extent possible, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. All indicated studies, including ROM studies in degrees, should be performed, in active and passive motion, weight-bearing and non-weight-bearing. If feasible, the examiner should assess any additional functional impairment on repeated use or during flare-ups in terms of the degree of additional ROM loss. An explanation should be given for all opinions and conclusions expressed. If the VA examiner must resort to speculation to render the requested opinion/information, he/she must state the reasons therefor, with specificity, such as that this question is outside the scope of knowledge of a medical professional conversant in VA practices. 3. Schedule the Veteran for an appropriate examination to determine the current severity of his service-connected status post-surgery C6, C7 posterolateral foraminotomy. The claims folder must be made available to the examiner in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all appropriate protocols for rating spine disabilities. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the cervical spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. To the extent possible, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. All indicated studies, including ROM studies in degrees, should be performed, in active and passive motion, weight-bearing and non-weight-bearing. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional ROM loss. An explanation should be given for all opinions and conclusions expressed. If the VA examiner must resort to speculation to render the requested opinion/information, he/she must state the reasons therefor, with specificity, such as that this question is outside the scope of knowledge of a medical professional conversant in VA practices. 4. The AOJ should issue a SOC addressing the issue of service connection for ED. The Veteran should be given an opportunity to perfect the appeal by submitting a timely substantive appeal. The AOJ should not return this issue to the Board for appellate consideration following the issuance of the SOC unless he perfects his appeal. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any claim is not fully granted, issue a supplemental statement of the case (SSOC) and afford the Veteran and his representative an opportunity to respond before returning the claims to the Board, if otherwise in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs