Citation Nr: 21003915 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 12-31 465A DATE: January 25, 2021 ORDER Entitlement to a disability rating in excess of 20 percent prior to February 18, 2016 for right shoulder strain is denied. Entitlement to a disability rating of 30 percent, though no higher, from February 18, 2016 to December 15, 2018 for right shoulder strain is granted. Entitlement to a disability rating of 40 percent, though no higher, from December 15, 2018 to November 17, 2020 for right shoulder strain is granted. Entitlement to a disability rating in excess of 40 percent from November 17, 2020 is denied. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Prior to February 18, 2016, the probative evidence of record reflects that the Veteran’s right shoulder strain is productive of, at worst, limitation of motion of the arm to 80 degrees flexion and 85 degrees abduction, objective evidence of pain on motion and functional impairment with flare ups and after repetitive use demonstrated by pain on motion and no additional limitation of motion with repetitive use; there are no findings of ankylosis or impairment of the humerus, clavicle or scapula. 2. From February 18, 2016 to December 15, 2018, the probative evidence of record reflects that the Veteran’s right shoulder strain is productive of, at worst, limitation of motion of the arm to 40 degrees flexion and 45 degrees abduction, objective evidence of pain on motion and functional impairment with flare ups and after repetitive use demonstrated by pain on motion and no additional limitation of motion with repetitive use; there are no findings of ankylosis or impairment of the humerus, clavicle or scapula. 3. From December 15, 2018, the probative evidence of record reflects that the Veteran’s right shoulder strain is productive of, at worst, limitation of motion of the arm to 10 degrees flexion and 10 degrees abduction, objective evidence of pain on motion and functional impairment with flare ups and after repetitive use demonstrated by pain on motion and no additional limitation of motion with repetitive use; there are no findings of ankylosis or impairment of the humerus, clavicle or scapula. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent prior to February 18, 2016 for right shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201, 5202. 2. The criteria for a disability rating of 30 percent, though no higher, from February 18, 2016 to December 15, 2018 for right shoulder strain have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DC 5201. 3. The criteria for a disability rating of 40 percent, though no higher, from December 15, 2018 to November 17, 2020 for right shoulder strain have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DC 5201. 4. The criteria for a disability rating in excess of 40 percent from November 17, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to May 1993. A January 2018 Board of Veterans’ Appeals (Board) decision, in part, denied an increased rating for right shoulder strain and ratings in excess of 30 percent prior to March 20, 2014, and in excess of 40 percent from March 20, 2014 for a degenerative disc disease of the lumbar spine. The Veteran appealed that decision to the United States Court of Appeal for Veterans Claims (Court). By a November 2018 Order, the Court vacated and remanded these issues to the Board pursuant to the terms of a Joint Motion for Partial Remand. An August 2019 Board decision, in part, remanded the claims for service connection for erectile dysfunction and left shoulder and an increased rating for the right shoulder. The Board also issued decisions on the remaining issues on appeal including increased ratings for right and left ulnar nerve conditions, which were appealed to the Court and affirmed by an October 2020 Memorandum Decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different “staged” ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. 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 (38 C.F.R. § 4.40), 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 (38 C.F.R. § 4.45). Mitchell, 25 Vet. App. 32. 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. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See also Spencer v. West, 13 Vet. App. 376, 382 (2000) and Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 1. Right shoulder strain The Veteran’s right shoulder disability has been rated under 38 C.F.R. § 4.71a, DC 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees, and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. DC 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major arm and 20 percent for the minor arm; limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major arm and 20 percent for the minor arm; limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major arm and 30 percent for the minor arm. 38 C.F.R. § 4.71a. Prior to February 18, 2016, the evidence of record, including VA medical records and the August 2010, March 2013 and February 2016 VA examinations, demonstrates that the Veteran’s right shoulder disability is productive of, at worst, limitation of motion of the arm to 80 degrees flexion and 85 degrees abduction, objective evidence of pain on motion and functional impairment with flare ups and after repetitive use demonstrated by pain on motion and no additional limitation of motion with repetitive use. These findings do not meet the assignment of a disability rating higher than the 20 percent disability rating already assigned under DC 5201. From February 18, 2016 to December 15, 2018, the evidence of record, including VA medical records and the December 2018 VA examination, demonstrates that the Veteran’s right shoulder disability is productive of, at worst, limitation of motion of the arm to 40 degrees flexion and 45 degrees abduction, objective evidence of pain on motion and functional impairment with flare ups and after repetitive use demonstrated by pain on motion and no additional limitation of motion with repetitive use. These findings warrant the assignment of a 30 percent disability rating, though no higher, under DC 5201. From December 15, 2018, the evidence of record, including VA medical records and the November 2020 VA examination, demonstrates that the Veteran’s right shoulder disability is productive of, at worst, limitation of motion of the arm to 10 degrees flexion and 10 degrees abduction, objective evidence of pain on motion and functional impairment with flare ups and after repetitive use demonstrated by pain on motion and no additional limitation of motion with repetitive use. These findings warrant the assignment of a 40 percent disability rating, though no higher, from December 15, 2018 and do not meet the criteria for a disability rating higher than the 40 percent currently assigned from November 17, 2020 under DC 5201. The Board observes that a 40 percent disability rating is the maximum rating provided under DC 5201. In addition, there is no evidence of ankylosis or impairment of the humerus so as to warrant a higher disability rating under DCs 5200 or 5202. The probative evidence of record throughout the duration of the appeal, including all the periods above, does not reflect any findings of ankylosis or impairment of the humerus, clavicle or scapula. These staged disability ratings take into account 38 C.F.R. §§ 4.40, 4.45, 4.59, as additional limitation of motion and function after repetitive testing and with flare ups were recorded in the VA examinations and the Board has considered whether these additional limitations reflect changes that more nearly approximated the next higher rating criteria under DC 5201 in providing the various staged ratings prior to February 18, 2016, from February 18, 2016, from December 15, 2018 and from November 17, 2020 and are consistent with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). See also Voyles v. Brown, 5 Vet. App. 451, 454 (1993); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, the Board observes that the Veteran’s functional loss noted in the VA examinations was reported as a limitation of motion of the arm and therefore, assessing whether the additional limitation of motion and function more nearly approximated the next higher rating criteria under DC 5201, which is based on a limitation of motion of the arm, is appropriate. As the Veteran is right hand dominant, the 20 percent, 30 percent and 40 percent disability ratings are warranted in the respective stages noted above for limitation of the major (dominant) and minor joints. 38 C.F.R. § 4.71a, DC 5201. The Board also has considered other potentially applicable DCs; however, as there is no evidence of ankylosis, impairment of the humerus on the shoulders, or impairment of the clavicle or scapula, DCs 5200, 5202 and 5203 regarding the shoulders do not apply in this case. Accordingly, the Veteran’s right shoulder strain does not support the assignment of a disability rating greater than 20 percent prior to February 18, 2016, warrants a 30 percent disability rating, though no higher, from February 18, 2016 to December 15, 2018, warrants a 40 percent disability rating, though no higher, from December 15, 2018 to November 17, 2020, and does not support a disability rating greater than 40 percent from November 17, 2020. 38 C.F.R. §§ 4.3, 4.7, 4.71a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). REASONS FOR REMAND 1. Left Shoulder and Erectile Dysfunction In this case, VA examinations and opinions were provided for the left shoulder and erectile dysfunction in December 2018 and November 2020; however, these opinions are inadequate. In an August 2019 decision, the Board found the December 2018 VA opinions were inadequate and remanded the claim for new examinations and opinions. The Board observes that the November 2020 VA opinions failed to address the Veteran’s lay statements of left shoulder problems since service, a November 2014 private medical opinion indicating the Veteran’s erectile dysfunction may be secondary to a service-connected disability, private medical records and the December 2018 VA opinion indicating erectile dysfunction may be related to nonservice-connected hypogonadism and private medical records indicating treatment for hypergonadism dating back to the Veteran’s active duty. In light of this evidence, new VA examinations with opinions are necessary to identify whether it was at least as likely as not that the current left shoulder and erectile dysfunction disabilities were incurred in or otherwise related to the Veteran’s active service and whether erectile dysfunction is proximately due to or aggravated by a service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 2. Upon receipt of all additional records, the Veteran should be afforded a VA musculoskeletal examination to determine the current nature and etiology of the left shoulder disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS the Veteran’s reported history carefully, including the Veteran’s lay statements of a continuity of left shoulder symptoms since service and treatment for bilateral rotator cuff tendonitis in June 1996. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Please specify the current diagnosis(es) of any left shoulder disabilities. (b). The examiner is then asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current left shoulder disability: (1) had its onset during the Veteran’s period of active service; OR, (2) was caused by any incident or event that occurred during such period. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 3. Upon receipt of all additional records, the Veteran should be afforded a VA genitourinary examination to determine the current nature and etiology of erectile dysfunction. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1) the Veteran’s reported history carefully, including, the Veteran’s lay statements; (2) the November 2014 private medical opinion; (3) the December 2018 VA opinion also indicating the Veteran’s erectile dysfunction was secondary to hypogonadism; AND (4) the private medical records indicating erectile dysfunction is secondary to hypergonadism and indicating treatment for hypergonadism dating back to the Veteran’s active service. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Please specify the current diagnosis(es) of any erectile dysfunction disability. (b). The examiner is then asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current erectile dysfunction: (1) had its onset during the Veteran’s period of active service; or, (2) was caused by any incident or event that occurred during such period, including treatment for hypogonadism; or (3) is PROXIMATELY DUE TO OR WAS AGGRAVATED by a service-connected disability or the medications for service-connected disabilities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, 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.