Citation Nr: 18152852 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 15-38 705 DATE: November 26, 2018 ORDER A rating of 60 percent, but no higher, for left leg below knee amputation is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 20 percent for left shoulder rotator cuff tear with impingement syndrome is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire appeal period, and resolving all doubt in favor of the Veteran, his left leg below knee amputation more nearly approximates amputation not improvable by prosthesis controlled by natural knee action. CONCLUSION OF LAW The criteria for a 60 percent rating for left leg below knee amputation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code (DC) 5164, 5165. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. In his October 2015 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge, which was scheduled for April 2018. However, in correspondence received earlier that month, the Veteran withdrew his request for a Board hearing. 38 C.F.R. §§ 20.702(e), 20.704(e). In a May 2017 statement, the Veteran, through his representative, contended that his disabilities on appeal, in combination with his other service-connected disabilities, require the aid and attendance of another person and render him unemployable. Therefore, the Board has assumed jurisdiction over the issues of entitlement to SMC based on the need for aid and attendance and TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Further, the Veteran submitted additional evidence in support of his appeal at such time. 38 U.S.C. § 7105(e)(1). Additionally, in the same May 2017 statement, the Veteran’s representative argued for increased ratings for the Veteran’s service-connected right shoulder, back, and right knee disabilities; however, such issues are not on appeal. Therefore, if the Veteran wishes such issues to be considered, he and/or his representative must file the appropriate application with the AOJ. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. 1. Entitlement to a rating in excess of 40 percent for left leg below knee amputation. The Veteran contends that his left leg below knee amputation has been productive of amputation not improvable by prosthesis controlled by natural knee action, thus warranting a 60 percent rating. Specifically, he alleges that he is unable to use a prosthesis effectively as a result of bilateral knee and back pain. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran's left leg below knee amputation is currently rated as 40 percent disabling under DC 5165 for amputation at a lower level of the leg permitting prosthesis. 38 C.F.R. § 4.71a, DC 5165. Amputation of the leg not improvable by prosthesis controlled by natural knee action will be rated as 60 percent disabling. 38 C.F.R. § 4.71a, DC 5164. For the entire appeal period, the Board resolves all doubt in favor of the Veteran and finds that his left leg below knee amputation more nearly approximates amputation not improvable by prosthesis controlled by natural knee action. In this regard, VA medical records, including VA examinations, document that the Veteran underwent a left leg below knee amputation and was provided a prosthesis for his left leg, but does not use it as a result of bilateral knee and back pain. As such, he currently uses a wheelchair. In this regard, a January 2013 VA treatment record reflects that the Veteran was using a wheelchair due to pain from standing. Specifically, he reported that prolonged use of the prosthesis caused pain in his knee. In May 2013, it was noted that he was unable to use his prosthesis due to exacerbation of his low back pain. A September 2014 VA examination report reflects that the Veteran had a history of a left below the knee amputation, but no longer used the prosthesis due to low back pain. In this regard, it was noted that he regularly used a wheelchair due to such amputation and an inability to use the lower extremity prosthesis. September 2015 VA treatment records likewise reveal the Veteran was not using his prosthetic leg due to back pain. Based on the foregoing, the Board finds that the Veteran's left leg below knee amputation more nearly approximates amputation not improvable by prosthesis controlled by natural knee action as he is unable to use it. Therefore, the Board finds that the criteria for an increased rating of 60 percent, but no higher, for left leg below knee amputation pursuant to DC 5164 is met. However, at no point during the pendency of the appeal has the Veteran’s left leg below knee amputation resulted in amputation of the thigh. Therefore, a rating in excess of 60 percent is not warranted under any applicable DC. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected left leg below knee amputation; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, other than his claims for SMC and TDIU, which will be addressed in the remand below, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In fact, in May 2017, the Veteran’s representative specifically argued for the assignment of a 60 percent rating for his left leg below knee amputation, which has been granted herein. Therefore, the Board finds that a rating of 60 percent, but no higher, for the Veteran’s left leg below knee amputation warranted. In reaching such determination, the Board applied the benefit of the doubt doctrine; however, to the extent that higher or separate ratings are otherwise denied herein, the preponderance of the evidence is against such claims. Therefore, the benefit of the doubt doctrine is not applicable in such regard and the claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a rating in excess of 20 percent for left shoulder rotator cuff tear with impingement syndrome. The Veteran contends that his left shoulder disability is more severe than as reflected by the currently assigned 20 percent rating. During the course of the appeal, the Veteran was afforded a VA examination in April 2014 in order to assess the nature and severity of his left shoulder disability. The Board also notes that, in connection with a September 2014 VA examination for his right shoulder disability, the examiner addressed the Veteran’s left shoulder disability to a limited extent. However, upon review of the examination reports, it does not appear that they addressed the United States Court of Appeals for Veterans Claims (Court’s) holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board finds that a remand is necessary in order to afford the Veteran a new VA examination so as to determine the nature and etiology of his left shoulder disability in compliance with the Court’s holdings. 3. Entitlement to SMC based on the need for aid and attendance. 4. Entitlement to a TDIU. The Veteran's claims for SMC and TDIU are inextricably intertwined with the development ordered for his claim for an increased rating for a left shoulder disability. Therefore, the Board finds that adjudication of the issues of entitlement to SMC and TDIU must be deferred pending the outcome of the increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Further, while on remand, the Veteran should be provided with notice of the information and evidence necessary to substantiate his claims for SMC and TDIU, and be requested to complete a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). The matter is REMANDED for the following action: 1. Provide the Veteran with notice of the information and evidence necessary to substantiate his claims for SMC and TDIU, and request that he complete a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected left shoulder disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s left shoulder disability. (B) The examiner should record the range of motion of the left shoulder observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If 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. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s left shoulder disability conducted in April 2014 and September 2014. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his left shoulder, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner is also requested to report whether the Veteran’s left shoulder disability results in ankylosis of scapulohumeral articulation, impairment of the humerus, and/or impairment of the clavicle or scapula. (G) The examiner should also comment upon the functional impairment resulting from the Veteran’s left shoulder disability. A rationale for all opinions offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel