Citation Nr: 21005177 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 15-33 150 DATE: January 29, 2021 ORDER Entitlement to a 30 percent rating, but no higher, for right acromioclavicular separation residuals with degenerative joint disease (right shoulder disability), is granted from January 19, 2011. REMANDED Entitlement to a rating in excess of 40 percent for chronic lumbar strain is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for a bladder disorder is remanded. Entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT When considering pain, flare-ups, and corresponding functional limitations, the Veteran’s right shoulder disability has more nearly approximated limitation of motion midway between the side and shoulder level throughout the appeal period. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, for right shoulder disability are met from January 19, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5201-5010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1984 to January 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). The Board remanded the claims on appeal for further development in July 2019. In December 2020, the Veteran was notified that the VLJ who conducted the December 2018 hearing was no longer at the Board and was given 30 days to request a new Board hearing in conjunction with this appeal. The Veteran did not respond. Notably, during the pendency of this appeal, a September 2020 rating decision awarded service connection for an acquired psychiatric disorder. This issue is accordingly not in appellate status. That rating decision also increased the Veteran’s back disability rating to 40 percent throughout the appeal period, January 19, 2011. Thus, the issue has been recharacterized accordingly. 1. Entitlement to a 30 percent rating, but no higher, for right shoulder disability is granted from January 19, 2011. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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). The Court of Appeals for Veterans Claims (Court) later 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. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. By way of background, a July 1997 rating decision awarded service connection for a right shoulder disability and assigned a 10 percent rating, effective January 17, 1997. A January 2007 rating decision increased the rating to 20 percent, effective January 11, 2006. An August 2015 rating decision decreased the rating to 10 percent, effective June 14, 2015, and a July 2019 Board decision restored the 20 percent rating, effective June 14, 2015, which was implemented in an August 2020 rating decision. The current appeal period before the Board begins on January 19, 2011, the date VA received the Veteran’s claim for an increased rating, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s right shoulder disability is currently rated as 20 percent disabling pursuant to DCs 5201-5010. DC 5010 provides for rating traumatic arthritis as degenerative arthritis under DC 5003. DC 5003 directs VA to rate the disability on the basis of limitation of motion pursuant to an appropriate diagnostic code for the specific joint involved. DC 5201 provides ratings for limitation of motion of the arm. The rating criteria for evaluating disabilities of the shoulder, distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. As the record establishes that the Veteran’s right shoulder is dominant, the criteria for rating disabilities of the major extremity are for application. Under DC 5201, pertaining to the major extremity, a 20 percent rating is assigned for limitation of motion of the arm at shoulder level, a 30 percent rating is assigned for limitation of motion of the arm midway between the side and shoulder level, and a maximum 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from the side. See 38 C.F.R. § 4.71a, DC 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Here, the Board finds that a 30 percent rating is warranted for the Veteran’s right shoulder disability, based on the Veteran’s competent and credible reports of limited arm motion midway between the side and shoulder level due to pain and flare-ups throughout the appeal period, effective January 19, 2011. See Board Hearing Transcript at 11-12. In this regard, there is no pertinent evidence demonstrating an ascertainable increase in disability to allow for assignment of the 30 percent rating within the one-year look-back period. A rating in excess of 30 percent is not warranted, as the Veteran’s right shoulder disability has not resulted in limitation of motion of the arm to 25 degrees from the side, even when considering additional functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and flare-ups. In this regard, even when considering DeLuca factors, the Veteran’s right shoulder motion was, at its worst, manifested by flexion to 85 degrees and abduction to 85 degrees after repetitive testing. See January 2019 VA examination report. Furthermore, while the Board acknowledges that the Veteran reported flare-ups, including associated symptoms of increased pain, stiffness, limited motion, and difficulty with heavy lifting, the evidence does not show that such symptoms cause further functional loss that more nearly approximates limitation of motion of the arm to 25 degrees from the side, and the Veteran does not assert otherwise. Rather, the January 2019 VA examiner estimated that the Veteran’s right shoulder flexion and abduction would be limited to 75 degrees during a flare-up. As such, a rating in excess of 30 percent under DC 5201 is precluded. The Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes pertaining to the shoulder. However, there is no indication of ankylosis of the scapulohumeral articulation or impairment of the humerus at any point during the period on appeal. Thus, ratings under DCs 5200 and 5202 are not available. Furthermore, a separate rating under DC 5023 for impairment of the clavicle or scapula is also not warranted, despite the evidence of dislocation, because it would result in impermissible pyramiding, as the Veteran’s symptoms, including pain, limitation of motion due to pain, and functional impairment are contemplated in the currently assigned rating under DC 5201. See 38 C.F.R. § 4.14. Moreover, since 20 percent is the maximum rating available for dislocation under DC 5203, to rate the right shoulder disability under DC 5203 would not benefit the Veteran. Accordingly, the Board concludes that a separate rating or a rating greater than 30 percent for the right shoulder disability is not warranted. REASONS FOR REMAND 2. Entitlement to service connection for left lower extremity radiculopathy is remanded. 3. Entitlement to service connection for right lower extremity radiculopathy is remanded. 4. Entitlement to service connection for a bladder disorder is remanded. 5. Entitlement to service connection for a left shoulder disability is remanded. In November 2018, the Veteran filed a timely Notice of Disagreement (NOD) regarding the denial of service connection for bilateral lower extremity radiculopathy, a bladder disorder, and a left shoulder disability in a September 2018 rating decision. The Veteran also indicated disagreement as to service connection for a right knee disability, which was not included or part of the September 2018 rating decision. Therefore, the Board finds that the issue of service connection for a right knee disability is not on appeal. In his November 2018 NOD, the Veteran specifically elected the Decision Review Officer (DRO) Process in lieu of the Traditional Appellate Process and VA acknowledged receipt of his NOD. See April 2019 Process Explanation Letter. To date, there has been no indication of a decision by the DRO or any correspondence to the Veteran providing an update to his pending appeal for the claims listed above. As the issues have not been resolved through the DRO process and no Statement of the Case (SOC) has been issued, a remand for issuance of a SOC is needed on remand. See 38 C.F.R. § 20.201; Manlincon v. West, 12 Vet. App. 238 (1999). 6. Entitlement to a rating in excess of 40 percent for chronic lumbar strain is remanded. The increased rating claim for the Veteran’s chronic lumbar strain is inextricably intertwined with the claims of entitlement to service connection for bilateral lower extremity radiculopathy and a bladder disorder. See July 2018 VA Form 21-4138. Therefore, adjudication of the chronic lumbar strain increased rating claim must be deferred until the requested developed above has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The aforementioned matters are REMANDED for the following action: 1. Refer the claims of entitlement to service connection for bilateral lower extremity radiculopathy, a bladder disorder, and a left shoulder disability to the DRO for adjudication. If the benefits sought on appeal are not established, a SOC should be issued, including appellate rights. 2. Readjudicate the Veteran’s increased rating claim for chronic lumbar strain once the issues of entitlement to service connection for bilateral lower extremity radiculopathy and a bladder disorder have been decided. Then, if the benefit sought on appeal is not established, a Supplemental Statement of the Case should be issued. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.