Citation Nr: 21063957 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-50 921 DATE: October 18, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for fragment wound, left posterior shoulder, moderate injury MG I for the period prior to November 6, 2020 and in excess of 20 percent thereafter is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease, left shoulder for the period prior to August 31, 2018, and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for fragment wound, left posterior shoulder, moderate injury MG I for the period prior to November 5, 2020 and in excess of 20 percent thereafter; and entitlement to a disability rating in excess of 10 percent for degenerative joint disease, left shoulder for the period prior to August 31, 2018, and in excess of 20 percent thereafter are remanded. The Veteran had active service from November 1967 to November 1969. These matters originate from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left shoulder, and in excess of 10 percent for fragment wound, left posterior shoulder, moderate injury muscle group (MG) I. During the pendency of the appeal, the Veteran has been granted increased ratings for both disabilities. However, as the highest possible ratings have not been assigned for the periods on appeal, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). This matter was previously before the Board of Veterans' Appeals (Board) in November 2019, at which time it was remanded for additional development, as discussed further below. The Board notes that the Veteran testified at a Board hearing in September 2019. Generally, the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal; where that VLJ is no longer available, the appeal may be reassigned to another VLJ for a decision. 38 U.S.C. § 7107(c); 38 C.F.R. §§ 20.106, 20.707. In August 2021 the Veteran was informed by correspondence that the VLJ who conducted his September 2019 hearing was no longer available; the Veteran responded in September 2021 that he did not wish to appear at another Board hearing and requested that his appeal be considered based upon the evidence of record, to include a transcript of the September 2021 hearing. The Veteran seeks increased ratings for two separately rated left shoulder disabilities. His fragment wound muscle injury is rated under 38 C.F.R. § 4.73, diagnostic code 5301 on the basis of impairment of upward rotation of the scapula and elevation of the arm above shoulder level. The Veteran's degenerative joint disease of the left shoulder is rated on the basis of impairment of flexion and/or abduction. 38 C.F.R. § 4.71a, diagnostic code 5201. A single VA examiner completed two separate evaluations of the Veteran's left shoulder disabilities in November 2020. With respect to the Veteran's fragment wound muscle injury, the examiner stated: "[Left] posterior muscle injury results in painful and limited [range of motion] of [left] shoulder with repeated overhead use" 11/11/2020, C&P Exam, p. 10. With respect to the Veteran's degenerative joint disease of the left shoulder, the examiner stated: "[Degenerative joint disease] of [left] shoulder . . . results in painful and weakened [range of motion] with repeated overhead use and lifting." 11/12/2020, C&P Exam, p. 20. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Here, the Board is unable to distinguish between the effects of the Veteran's separate shoulder disabilities on his left shoulder range of motion, particularly overhead use and lifting. Accordingly, the Board finds that an addendum opinion is required to distinguish between the symptoms of the Veteran's separate left shoulder disabilities. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); 38 C.F.R. § 4.14. The matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the examiner who provided the November 2020 opinions as to the current severity of the Veteran's left shoulder fragment wound muscle injury and degenerative joint disease of the left shoulder. If the November 2020 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is requested to provide a clarifying opinion distinguishing between the symptoms of the Veteran's two separate shoulder disabilities, particularly with regard to impairment of range of motion, including overhead use and lifting. Ideally, the examiner should list all symptoms shown in the record that are solely attributable to the muscle injury and all symptoms solely attributable to the left shoulder degenerative arthritis. If this cannot be accomplished then the examiner must clearly explain why this is so. ERIC S. LEBOFF Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.