Citation Nr: 1806378	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  11-26 861	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for service-connected right shoulder strain with degenerative changes, status-post arthroscopy (hereinafter, "right shoulder disorder") excluding period when temporary total evaluation was in effect.

2.  Entitlement to a rating in excess of 20 percent for service-connected mechanical low back pain with degenerative disc disease L5-S1 (hereinafter, "low back disorder").

3.  Entitlement to a rating in excess of 30 percent for service-connected asthma.

4.  Entitlement to a rating in excess of 10 percent for service-connected hypertension.

5.  Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from July 1987 to May 1996, and is a recipient of the Combat Action Ribbon among other awards.

This matter is before the Board of Veterans' Appeals (Board) originally on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Board acknowledges that the October 2010 rating decision continued the 10 percent rating for the Veteran's service-connected right shoulder disorder.  Further, that decision did not formally adjudicate the issue of entitlement to a TDIU.  However, a September 2016 decision review officer (DRO) decision assigned a 20 percent rating for the right shoulder, effective April 21, 2010 (date of claim); while a subsequent November 2016 rating decision assigned a temporary total evaluation from July 14, 2016, with the 20 percent rating being resumed November 1, 2016.  Moreover, the Board has determined that the TDIU issue is properly before it for appellate consideration in accord with the holding of Rice v. Shinseki, 22 Vet. App. 447 (2009).  Therefore, the Board has construed the appellate claims to reflect these developments.

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2017.  A transcript of that hearing is of record.

For the reasons stated below, the Board finds the Veteran is entitled to a separate rating of at least 10 percent for neurologic impairment of the left lower extremity, associated with the service-connected low back disorder.  However, as addressed in the REMAND portion of the decision below, the Board finds that further development is required regarding the whether a rating in excess of 10 percent is warranted for that disability; as well as for the Veteran's low back, asthma, hypertension, and TDIU claims.  Accordingly, these claims are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The record reflects the Veteran is right hand dominant; i.e., his right shoulder is his major upper extremity.

2.  The competent and credible evidence of record reflects the service-connected right shoulder disorder more nearly approximates than not the criteria of limitation of motion midway between the side and shoulder level.

3.  The competent and credible evidence of record reflects it is at least as likely as not the Veteran has impairment analogous to at least mild incomplete paralysis of the left lower extremity associated with his service-connected low back disorder.


CONCLUSIONS OF LAW

1.  The criteria for a rating of 30 percent for the service-connected right shoulder disorder are met, excluding the period a temporary total evaluation was in effect.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017).

2.  The criteria for a separate compensable rating of at least 10 percent for impairment of the left lower extremity associated with service-connected low back disorder are met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a (Note (1) General Rating Formula for Diseases and Injuries of the Spine),4.124a, Diagnostic Code 8520 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

General Criteria

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

Analysis - Right Shoulder

Under the laws administered by VA, a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes.  In the instant case, the Veteran's right shoulder is considered the major upper extremity.

Limitation of motion of the major shoulder to shoulder level warrants a 20 percent evaluation.  Limitation midway between the side and shoulder level warrants a 30 percent evaluation for the major shoulder.  Motion no more than 25 degrees from the side warrants a 40 percent rating for the major shoulder.  38 C.F.R. § 4.71a, Diagnostic Code 5201.  

The average range of motion of the shoulder is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees.  38 C.F.R. § 4.71.

In this case, the Veteran has provided competent and credible evidence that his service-connected right shoulder has been manifested by pain and resulting functional impairment such as limited motion throughout the pendency of this case.  When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

In this case, the Board notes that a September 2010 VA examination found the right shoulder to have flexion to 145 degrees; abduction to 100 degrees; external rotation to 60 degrees; and internal rotation to 45 degrees.  Pain was noted on the extremes of these range of motions.  Further, the more recent August 2016 VA examination found the right shoulder had flexion to 100 degrees, abduction to 90 degrees, as well as external and internal rotation both to 70 degrees.  Although there was no change with repetitive motion testing on these examinations, the Veteran has indicated these examinations did not adequately take into account the effect of pain on motion.  He also criticized the adequacy of the August 2016 VA examination on other bases at his July 2017 hearing, and described the motion of his shoulder at that hearing by language indicative of it being midway between the side and shoulder level.  Moreover, he indicated that his use of pain medication may have camouflaged the effect of his pain on motion.  See Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the Board, in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria).

In view of the foregoing, and resolving all reasonable doubt regarding degree of disability in favor of the Veteran, the Board finds the competent and credible evidence of record reflects the service-connected right shoulder disorder more nearly approximates than not the criteria of limitation of motion midway between the side and shoulder level.  Therefore, he is entitled to a 30 percent rating pursuant to Diagnostic Code 5201.

The Board acknowledges that Diagnostic Code 5201, as well as other potentially applicable rating criteria, provide for an evaluation in excess of 30 percent.  However, the Veteran stated at his July 2017 hearing that the assignment of a 30 percent rating for his right shoulder would satisfy his appeal as to that claim.  Transcript pp. 14-15.  Accordingly, no further discussion of is warranted.




Analysis - Left Lower Extremity Impairment

In this case, the Veteran has contended, among other things, that he has had recurrent pain and numbness of his left lower extremity.  See Transcript p. 10.  This is of particular significance in this case because Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides for a separate rating for associated neurologic impairment of a service-connected spine disorder.

The Board further observes that the September 2010 and August 2016 VA examinations which evaluated the service-connected low back disorder both noted, in part, complaints of pain radiating into the left lower extremity.  Although these examination do not explicitly diagnose associated neurologic, the Veteran is competent to describe such symptomatology, and the Board finds no reason to doubt his credibility as to those complaints.  Moreover, the Board finds that the impairment indicated more nearly approximates the criteria of mild incomplete paralysis than not; which, in turn, corresponds to the criteria for a 10 percent rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520.  Resolving all reasonable doubt in favor of the Veteran, the Board finds he is entitled to separate ratings of 10 percent for impairment of the left lower extremity associated with the service-connected low back disorder.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7.

For the reasons discussed in the REMAND portion of the decision below, the Board finds that further development is required regarding the issue of whether a rating in excess of 10 percent is warranted for the left lower extremity impairment.


ORDER

A rating of 30 percent for the service-connected right shoulder disorder is granted, excluding the period a temporary total evaluation was in effect; and subject to the law and regulations governing the payment of monetary benefits.

A separate rating of at least 10 percent for impairment of the left lower extremity associated with service-connected low back disorder is granted, subject to the law and regulations governing the payment of monetary benefits.


REMAND

Initially, the Board notes that the Veteran testified at his July 2017 hearing that he received current treatment for his service-connected disabilities at a Toledo VA medical facility.  See Transcript, pp. 3, 7, 17.  However, it is not clear whether the Board has all records from this facility.  Relevant statutory and regulatory provisions emphasize the importance of obtaining VA records as part of the duty to assist.  See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016).  Consequently, the Board concludes that it must remand this case in order to obtain any such records.

The Board further notes the Veteran contended at his July 2017 hearing that the most recent VA examinations of his service-connected low back disorder, asthma, and hypertension were inadequate.  Thus, a remand is also required to accord the Veteran new competent medical examinations of these disabilities, to include the left lower extremity impairment which is associated with the service-connected low back disorder.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Inasmuch as the resolution of the Veteran's low back, left lower extremity impairment, asthma, and hypertension claims may affect his entitlement to a TDIU, the Board finds these claims are inextricably intertwined.  The Board thus must defer adjudication of the TDIU claim until the development deemed necessary for the other claims have been completed.  Moreover, as competent medical examinations are deemed necessary in this case, such should also address the effect of these service-connected disabilities upon the Veteran's employability.

Accordingly, the case is REMANDED for the following action:

1.  Request the names and addresses of all medical care providers who have treated the Veteran for his low back, left lower extremity, asthma, and hypertension since September 2016.  Even if the Veteran does not respond, determine if there are any outstanding VA medical records for the pertinent period to include at the Toledo VA medical facility identified by the Veteran at his July 2017 hearing.

After securing any necessary release, obtain those records not on file.

2.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his back, left lower extremity, asthma, and hypertension symptoms; as well as the impact of these and his other service-connected conditions on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

3.  After obtaining any additional records to the extent possible, the veteran should be afforded an examination(s) to evaluate the current nature and severity of his service-connected low back disorder including the associated left lower extremity impairment, asthma, and hypertension.  The claims folder should be made available to the examiner(s) for review before the examination(s).

Regarding the low back disorder, it is imperative that the examiner:

(a) Comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion.  The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing.  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.

(b) The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and after repeated use over time.  

(c) Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

The examiner(s) should also express an opinion as to the effect/limitations the Veteran's service-connected disabilities have upon his employability, both by itself and in conjunction with his other service-connected disabilities.

4.  After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review.  If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained since this case was last adjudicated below, and provides an opportunity to respond.  

The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

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 2014).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs