Citation Nr: 19115641 Decision Date: 03/04/19 Archive Date: 03/04/19 DOCKET NO. 15-31 869 DATE: March 4, 2019 ORDER Entitlement to service connection for a bilateral shoulder condition is granted. Entitlement to an increased rating, not in excess of 20 percent, for a cervical spine (neck) disability is granted. REMANDED Entitlement to total disability due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral shoulder condition is at least as likely as not related to military service. 2. The Veteran’s neck condition reflects a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral shoulder condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an increased rating, not in excess of 20 percent, for a cervical spine (neck) disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to March 2000. The Veteran appeals July 2011 and March 2015 rating decisions from the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran had a Board hearing in August 2018, and a transcript is in the claim folder. Service Connection The Veteran contends that his bilateral shoulder condition is related to bodily strain resulting from participating in multiple parachute jumps in a nearly three-decade military career. See September 2015 VA Form 9. Direct service connection is warranted where the evidence of record establishes that a particular injury or disease results in a present disability that incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Bilateral Shoulder Condition Here, the Veteran has current diagnoses of left and right degenerative labral tears. See February 2015 Private Treatment Record; August 2015 Private Treatment Record. The Veteran sustained a right shoulder injury in June 1980. See Service Treatment Record. In December 2010, the Veteran underwent a VA examination. The VA examiner reported that the Veteran’s shoulder presented stiffness, and weakness. The VA examiner opined that the Veteran’s shoulder disability was less likely than not related to military service because there was no evidence of a chronic condition, or complaints of shoulder injury on the separation exam. A December 2010 private medical note reported that the Veteran has a history of cervical pain going into both shoulders. An undated buddy statement observed that the Veteran’s bilateral shoulder condition has “deteriorated dramatically over the years since retirement from the Army.” In an undated private medical opinion, the private physician stated, “Multiple injuries result due to the tremendous effort and pressure that is placed on the body of these men to perform these tasks. . . In my experience, treating special operations . . . is that this is a progressive case and consistent with other special operations veterans.” Thus, the private physician opined, “it is my ultimate opinion, that his service to this nation has resulted in these cumulative impairments that we are treating now and have limited his activities of daily living.” In sum, the Board acknowledges the differing opinions proffered by two equally qualified medical professionals and concludes that one opinion does not outweigh the other. The Board finds that the evidence of record reflects the presence of a bilateral shoulder condition since service. Tellingly, the Veteran separated from service because of his physical limitations brought about by the cumulative physical effects of service. See August 2018 Board Hearing. Further, a buddy statement observed that since the Veteran’s retirement, the Veteran’s bilateral shoulder condition deteriorated. The Board thus finds that the record evidence is at least in relative equipoise as to whether the Veteran’s bilateral shoulder condition is related is related, or was aggravated by, his military service. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board finds that service connection for a bilateral shoulder condition is warranted. Increased Rating The Veteran asserts that his neck disability is in a condition to warrant an increased rating. Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Neck Disability Here, the Veteran’s neck disability is rated under Diagnostic Code 5237. For diagnostic codes 5235 to 5243, a spinal injury is rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5235-43. A 100 percent rating is granted for an unfavorable ankylosis of the entire spine. If the spine injury is an unfavorable ankylosis of the entire thoracolumbar spine, a 50 percent rating is warranted. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. A 30 percent rating is warranted if forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Id. Under Note 1, the Board can evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. An August 2010 private treatment record reported the reversal of lordosis. In a December 2010 private treatment note, muscle spasms in the Veteran’s neck was noted. The Veteran’s gait was noted as being non-ataxic, and non-antalgic. But, the Veteran still walks with a forward stoop. See February 2014 Private Treatment Record. The Veteran underwent a VA examination in March 2014. The Veteran did not report flare-ups. The initial range of motion (ROM) measurements showed a forward flexion at 45 degrees or greater, extension at 20 degrees, right lateral flexion at 40 degrees, left lateral flexion at 35 degrees, right lateral rotation at 70 degrees, and left lateral rotation at 65 degrees. There were no ROM changes after post-repetitive use testing. The VA examiner noted that the Veteran had pain on movement. The Veteran did not have pain on palpation, or a muscle spasm that effects gait. The VA examiner noted that the Veteran had normal muscle strength, or muscle atrophy. The Veteran did not have ankylosis, IVDS, or other neurological abnormalities. Based on the above, the Board finds that a rating, not in excess of 20 percent, is warranted for the Veteran’s disability. The evidence of record noted the presence of a muscle spasm in the neck, and a reversal of lordosis. A higher rating is not warranted because the evidence of record does not have ankylosis of the cervical spine. Therefore, an increased rating, not in excess of 20 percent, is granted. REASONS FOR REMAND Total Disability due to Individual Unemployability (TDIU) The issue of TDIU is remanded for further development. The Veteran contends that his service connected disabilities prevent him from substantially gainful employment. As mentioned above, the Veteran is now service connected for a bilateral shoulder condition. However, the Veteran currently does not meet the schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). Further, the RO must first determine the disability rating for the Veteran’s bilateral shoulder condition. Such a disability rating may allow the Veteran to meet the schedular requirement. Thus, the Veteran’s TDIU claim is inextricably intertwined with the issue of an increased rating for a bilateral shoulder condition. Therefore, a final decision on the issue of entitlement to TDIU cannot rendered now. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matter is REMANDED for the following action: 1. Obtain and associate with the record all VA and private treatment records for the Veteran. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. If possible, the Veteran and his representative are asked to submit these records themselves. 2. Then, undertake the necessary measures to schedule the appellant for a medical examination for his bilateral shoulder condition to determine its current state. 3. During the examination, the appropriate clinician must opine whether the Veteran’s service connected disabilities make him unable to secure or follow a substantially gainful occupation. a) The examiner must consider the September 2018 private medical opinion stating: “It is my medical opinion that [the Veteran] cannot work due to his disabilities involving the cervical spine, lumbar spine, bilateral shoulders as well as the bilateral knees. More specifically, it is my opinion that due to his severe injuries related to his military service. [The Veteran] cannot maintain gainful employment even in a sedentary level secondary to these injuries.” 4. Then, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel