Citation Nr: 18115337 Decision Date: 07/02/18 Archive Date: 06/29/18 DOCKET NO. 14-38 617 DATE: July 2, 2018 ORDER A rating of 20 percent for right shoulder acromioclavicular separation and impingement is granted, effective December 3, 2012. REMANDED A disability rating higher than 20 percent for right shoulder acromioclavicular separation and impingement is remanded.   FINDING OF FACT The Veteran’s service-connected right shoulder disability has been productive of at least painful motion. CONCLUSION OF LAW The criteria for a disability rating of at least 20 percent for right shoulder acromioclavicular separation and impingement have been met since December 3, 2012. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1971 to May 1973. This matter is on appeal from an April 2013 rating decision. In April 2018, the Veteran testified by videoconference before the undersigned Veterans Law Judge. During his April 2018 Board Hearing, the Veteran submitted additional medical evidence and waived RO review of this evidence. He also requested a 60 day extension within which to submit more evidence, which was granted. No further evidence has been received. A disability rating in excess of 10 percent for right shoulder acromioclavicular separation and impingement. In a rating decision dated in September 1973, the Veteran was granted service connection for right shoulder acromioclavicular separation with a noncompensable (zero percent) rating. In December 2012, he filed a claim for an increased rating, and in April 2013 the RO increased the rating to 10 percent effective December 3, 2012. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is a factor to be considered. 38 C.F.R. § 4.59. The Veteran’s right shoulder disability has been rated under DC 5201 throughout the appeal period. The rating criteria at 38 C.F.R. § 4.71a, DC 5201, specifically apply to limitation of motion of the shoulder. Under DC 5201, a minimum disability rating of 20 percent is warranted for limitation of motion of the major (dominant) arm at shoulder level 38 C.F.R. § 4.71a, DC 5201. A 30 percent evaluation is warranted for limitation of motion of the major arm midway between the side and shoulder level, and a 40 percent evaluation is assigned for limitation of the major arm motion to 25 degrees from the side. Full range of motion of the shoulder is zero to 180 degrees on abduction and forward elevation (flexion), and zero to 90 degrees on internal and external rotation. Shoulder level is 90 degrees. 38 C.F.R. § 4.71, Plate I. On physical examination of the right shoulder in December 2012, there was objective evidence of painful motion and tenderness, mainly over the posterior shoulder area; with most of the pain inferior to the posterior scapular spine and the area of the posterior proximal humerus. See December 3, 2012 medical report from the Mayo Clinic. The physician particularly noted that there was discomfort in the 75 to 90 degrees range with lateral abduction and forward flexion. The Board finds that the criteria for a disability rating of at least 20 percent under the limitation of motion provisions of DC 5201 have been met since December 3, 2012—the earliest factually ascertainable date, within the year preceding the December 2012 claim for increased rating, of limitation of motion. See 38 C.F.R. § 4.59; Sowers v. McDonald, 27 Vet. App. 481-82 (2016); Burton v. Shinseki, 25 Vet. App. 1 (2011). This is so because 20 percent is the minimum rating for limitation of motion under this DC. The issue of a disability rating higher than 20 percent for the service-connected right shoulder disability is addressed below in the remand portion of this decision. This intermediary grant of benefits will not prejudice the Veteran. REASONS FOR REMAND A disability rating higher than 20 percent for right shoulder acromioclavicular separation and impingement. In regard to the issue of a disability rating higher than 20 percent for the service-connected right shoulder disability, the Veteran contends that his right shoulder range of motion is less than has been tested by VA. See Board Hearing Transcript, p. 6. On review of the record, the Board observes that the Veteran’s last VA shoulder examination was in April 2016. In the ensuing report the examiner noted that there was pain on weightbearing, but did not report the degrees of motion at which pain began. See Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that, per 38 C.F.R. § 4.59, in order to assess the effect of painful motion, range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances, should be done). The Veteran should therefore be afforded a new VA examination. See also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (estimating functional loss of a flare-up). On remand, the claims file should be updated to include VA medical records dated after February 2012. The RO should also provide the Veteran an opportunity to identify any outstanding private medical records referable to his right shoulder complaints. The matter is REMANDED for the following action: 1. Update the record to include the Veteran’s VA medical records dated after February 2012. 2. Send a letter to the Veteran asking him to identify the source/location of any extant medical records referable to his right shoulder complaints, and then take steps to obtain these records. Associate any located records with the claims file. 3. Schedule the Veteran for a new VA examination to ascertain the severity of his service-connected right shoulder acromioclavicular separation and impingement disability. This should include testing 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. If there are flare-ups, and the examination is not conducted during a flare-up, the functional loss should be estimated in terms of degrees. If this cannot be accomplished, it should be explained why this is so. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Childers, Counsel