Citation Nr: 21001379 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-41 667 DATE: January 7, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a right shoulder disability is denied. Entitlement to a rating in excess of 30 percent for left brachial plexus palsy, status post left shoulder gunshot wound with paralysis of the lower radicular group (hereinafter “left shoulder disability”), is denied. REMANDED Entitlement to service connection for arthritis in the right hand is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected disabilities (TDIU) prior to October 6, 2020, is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s right shoulder disability most closely approximated limitation of motion of the right (dominant) arm at shoulder level. 2. The symptoms of the Veteran’s left shoulder disability more closely approximate incomplete paralysis of the radicular nerve that is moderate in severity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5201 (2019). 2. The criteria for entitlement to a rating in excess of 30 percent for a left shoulder disability have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8513 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1979 to July 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal of February 2014 and July 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. This case was previously before the Board in January 2020, at which time the issues currently on appeal were remanded for additional development. This case has been returned to the Board for further appellate action. At the outset, the Board notes that the Veteran filed a TDIU claim form in October 2020. However, a claim of entitlement to TDIU is inferred from a claim for an increased rating when there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As discussed further below, the record reasonably raises the issue of unemployability during the period on appeal. Thus, the Board construes the TDIU claim currently before it as originating from the May 2013 increased rating claim. However, as the Veteran was granted entitlement to a TDIU effective October 6, 2020, in a November 2020 rating decision, the Board will limit its consideration accordingly. Increased Rating – Right Shoulder Disability The Veteran has asserted that he should have a higher rating for his right shoulder disability as his symptoms are worse than those contemplated by the currently assigned ratings. At a July 2015 VA examination, the Veteran reported that his right shoulder originally began to hurt as a result of overcompensating for the disability to his left shoulder. He reported that his pain had gotten progressively worse over time, and that he was unable to sleep as a result of right shoulder pain. The Veteran reported he had to stop working in automobile claims as a result of his right shoulder disability. He reported that his right shoulder pain was a 6 out of 10 in intensity. The Veteran reported that he was right-handed. He denied flare-ups of his right shoulder disability. He described the functional impairment of his right shoulder to consist of irritation and pain when lifting overhead, an inability to play baseball or basketball, and an inability to work. Upon physical examination, right shoulder range of motion measurements (ROM) were as follows: flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. The examiner noted that the Veteran has pain on all excursion of motion, but that his pain did not result in functional loss. There was no evidence of pain on weight bearing, and there was no crepitus. The Veteran was noted to have tenderness to palpation of the acromioclavicular (AC) joint, on the anterior aspect of his right shoulder. The Veteran was able to perform repetitive testing, and there was no additional limitation following repetition. The examiner noted that the Veteran was not significantly limited by pain, weakness, fatigability, or incoordination following repeated use over a period of time or during a flare-up. muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis. A right rotator cuff condition as not suspected. There was no right shoulder instability, dislocation, labral pathology suspected; there was no clavicle, scapula, AC joint, or sternoclavicular joint condition; and there was no conditions or impairments of the humerus. X-rays revealed right shoulder arthritis. In a January 2018 physical rehabilitation consultation, the Veteran reported right shoulder pain. At that time, his right shoulder ROM measurements were abduction limited to 140 degrees with pain at 90 degrees, forward flexion limited to 155 degrees with pain at 120 degrees, external rotation limited to 90 degrees with pain at 50 degrees, internal rotation limited to 50 degrees with pain at 40 degrees, and extension limited to 55 degrees. In an August 2018 physical rehabilitation note, the Veteran was reported as having the same ROM measurements as the January 2018 physical rehabilitation consultation. In November 2018, the Veteran reported right shoulder pain. Additionally, in three treatment notes from January 2019 to June 2019, the Veteran reported right shoulder pain and was noted as having an increase in his medication as well as receiving steroid injections. In January 2020 and February 2020 treatment notes, the Veteran reported chronic right shoulder pain and was noted as receiving steroid injections. At a July 2020 VA examination, the Veteran reported flare-ups of the right shoulder about three to four times per month that were mild to severe, lasted for two to three days, and were alleviated by limited use medication. The Veteran described his functional impairment as consisting of limited range of motion and difficulty lifting objects. Upon physical examination, the Veteran’s right shoulder ROM measurements were as follows: flexion to 150 degrees, abduction to 150 degrees, external rotation to 80 degrees, and internal rotation to 80 degrees. The examiner noted that the Veteran experienced pain on flexion and abduction, and his pain caused functional loss. There was objective evidence of pain on passive range of motion. There was no evidence of pain with weight bearing or non-weight bearing, and there was no crepitus. The Veteran did not have tenderness to palpation of the right shoulder. The Veteran was able to perform repetitive testing and there was no additional limitation following repetition. The examiner noted that the Veteran would not be significantly limited by pain, weakness, fatigability, or incoordination following repeated use over a period of time or during a flare-up. Muscle strength testing was normal, and there was no muscle atrophy. There was no ankylosis. A rotator cuff condition was not suspected. There was no evidence of right shoulder instability, dislocation, or labral pathology; clavicle, scapula, AC, or sternoclavicular joint conditions; or impairment of the humerus. The examiner noted that the Veteran’s right shoulder disability would impact his ability to work in that he was limited in his ability to perform repetitive gripping and grasping, fine manipulation work, repetitive lifting, carrying, and work requiring reaching above shoulder level. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his right shoulder disability. In that regard, there is no indication from the record that he Veteran’s right shoulder abduction was limited to midway between side and shoulder level. In fact, the Veteran’s abduction was limited to, at the very worst, 90 degrees from pain. Further, the Board notes that the VA examiners and treatment providers accounted for any additional limitation caused by pain, weakness, fatigability, or incoordination upon repeated use, following repeated use over a period of time, and during flare-ups when reporting the range of motion measurements. Therefore, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a rating in excess of 20 percent for the Veteran’s right shoulder disability. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2019). Consideration has been given to assigning a higher rating for the Veteran’s right shoulder disability based on another diagnostic code pertaining to the shoulder. However, there is no indication that the Veteran has right shoulder ankylosis, impairment of the humerus, or impairment of the clavicle or scapula. As such, the Veteran is appropriately rated based on pain and limitation of right shoulder motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203 (2019). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 20 percent for a right shoulder disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating – Left Shoulder Disability The Veteran asserts that he should have a higher rating for his left shoulder disability as his symptoms are worse than those contemplated by the currently assigned rating. At a February 2014 VA examination, the Veteran reported that he experienced left shoulder pain, numbness, and tingling following a gunshot wound (GSW) during service, and that his symptoms had gotten progressively worse over time. Muscle strength testing revealed active movement against some resistance in left wrist flexion and grip, but was otherwise normal. There was no muscle atrophy. Deep tendon reflex examination was normal. Sensory examination revealed decreased sensation to light touch in the left hand/fingers, but was otherwise normal. Median nerve testing was negative. The examiner found that the Veteran had incomplete paralysis of the left lower radicular group that was mild in severity. The examiner noted that the Veteran’s left shoulder disability had an impact on his ability to work in that he was unable to lift heavy objects, perform overhead work, use tools, use a keyboard, grip, or use his hand for extended periods of time. During a December 2017 electromyography (EMG) consultation, the Veteran reported some numbness in his left forearm. At that time, a nerve conduction study revealed that the Veteran had severe left ulnar neuropathy. In a May 2018 treatment note, the Veteran reported left shoulder pain. During his September 2019 Board hearing, the Veteran testified that he had continued pain in his left shoulder manifested by stabbing, burning, and aching. The Veteran also stated that he could only pull and push with his left hand. In February 2020, the Veteran was noted as having shoulder pain and receiving injections. At a July 2020 VA examination, the Veteran reported that his left hand was partially paralyzed as a result of the in-service GSW to his left shoulder. The examiner noted that the Veteran had constant pain in his left arm that was mild in severity, and moderate pain intermittently. He had mild paresthesias and/or dysesthesias, and mild numbness in the left upper extremity. Muscle strength testing revealed active movement against some resistance in the left grip, but was otherwise normal. The Veteran did not have muscle atrophy. Deep tendon reflect examination was normal. Sensory testing revealed decreased sensation to light touch in the left hand and fingers. There were no trophic changes. The examiner noted that the Veteran has incomplete paralysis of the left median nerve that was mild in severity, and incomplete paralysis of the ulnar nerve that was moderate in severity. The examiner noted that the Veteran’s left shoulder disability would impact his ability to work in that he was limited in his ability to perform repetitive griping and grasping, and was limited in his ability to perform fine manipulation work. The Board finds that the Veteran is not entitled to a rating in excess of 30 percent for his left shoulder disability. In this regard, there is no indication that the Veteran has incomplete paralysis of the radicular nerve that is worse than moderate in severity. In this regard, the Veteran has been noted to have mild to moderate symptom of pain, paresthesias and/or dysesthesias, and numbness. Further, while the Veteran has some decreased grip strength, there is no indication from the record that it interferes significantly with his ability to perform activities of daily living that require gripping and grasping. As such, the Board finds that a rating in excess of 30 percent is not warranted for his left shoulder disability. 38 C.F.R. § 4.124a, Diagnostic Code 8513. Additionally, consideration has been given to assigning staged ratings. However, at no time during the period in question has the Veteran’s left shoulder disability warranted a higher schedular rating than that currently assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the preponderance of the evidence is against the claim and entitlement to a rating in excess of 30 percent for a left shoulder disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. In the January 2020 remand, the Board directed that the Veteran be afforded VA examinations to determine the nature and etiology of his right hand arthritis and right carpal tunnel syndrome. A review of the record shows that the Veteran was afforded the directed VA examinations in July 2020 However, the Board finds that the opinions provided by the July 2020 VA examiner are inadequate for adjudication purposes. In that regard, as it relates to the Veteran’s carpal tunnel syndrome, the July 2020 VA examiner failed to address the Veteran’s lay statements pertaining to the onset and continuity of symptoms. As it relates to the Veteran’s right hand disability, the Board finds that the July 2020 VA examiner’s conclusion in inconsistent with the evidence of record which reflects the Veteran’s documented diagnosis of mild osteoarthritis in May 2014. Therefore, the Board finds that the development conducted does not adequately comply with the January 2020 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is required to obtain an addendum opinion in regard to the Veteran’s carpal tunnel syndrome, and a new VA examination in regard to his right-hand arthritis. Accordingly, as consideration of entitlement to a TDIU is inextricably intertwined with the claims remanded herein, a remand of the TDIU claim is required as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, forward the Veteran’s claims file to a VA examiner with appropriate expertise for an addendum opinion regarding the nature and etiology of the Veteran’s right carpal tunnel syndrome. The claims file must be reviewed by the examiner, and that review noted in the report. Based on a review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that his right carpal tunnel syndrome was aggravated (chronically worsened) by his service-connected left arm disability. In forming the opinion, the examiner must consider the Veteran’s statements regarding the onset and continuity of symptomatology. The rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present right hand arthritis. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right hand arthritis was aggravated (chronically worsened) by the Veteran’s service-connected left arm disabilities. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination report and all medical opinions provided comport with this remand, an undertake any other development found to be warranted. 5. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.