Citation Nr: 21064411 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-33 228 DATE: October 20, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for dislocation of the left shoulder is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for a vertebral body compression fracture at L1 and a spear plate compression fracture at L1-L2 (back disability) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of evidence is against the finding of fibrous union of the humerus, false flail joint, or flail shoulder. Additionally, there is no evidence of any additional disabilities of the left (minor) shoulder, to include ankylosis, fibrous union, nonunion or loss of the humerus impairment. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 20 percent for dislocation of the left shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.55, 4.7, 4.10, 4.21, 4.71a, 4.73, Diagnostic Code 5202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1982 to April 1986. By way of procedural history, the Board notes that the Veteran's claims for an increased rating for his left shoulder and back disability, to include a TDIU, was previously remanded by the Board in a February 2019 decision for further development. After completion of such development, the RO issued a December 2020 rating decision which granted a separate rating for the Veteran's left shoulder disability, based on limitation of motion; in that same decision, the Veteran's rating for dislocation of the left shoulder was continued. Subsequently, a Supplemental Statement of the Case (SSOC) was issued further denying the Veteran's claim for increased rating for the left shoulder (dislocation), back, and a TDIU. These claims have been returned ot the Board for appellate review. With regards to the Veteran's separate rating for limitation of motion of the left shoulder, the Board notes that the Veteran, through his representative, requested a Higher-Level-Review (HLR) of the claim, and the RO has since issued a HLR raing decision regarding the rating and effective date of this separate rating for limitation of motion. As such, this separate rating shall not be discussed herein, as part of the Veteran's claim for increased rating for a left shoulder disability. Increased Rating Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Board will consider entitlement to "staged" ratings to compensate for times when the disability may have been more severe than at others. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal exertion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are related considerations. 38 C.F.R. § 4.45. 1. Entitlement to an increased rating in excess of 20 percent for dislocation of the left shoulder The Veteran seeks an increased rating for his left shoulder recurrent dislocation. The Veteran is presently assigned a maximum 20 percent rating under Diagnostic Code 5202 for his left shoulder disorder. However, the Board will also consider related diagnostic codes, as they pertain to limitation of motion or associated or analogous disorders of the shoulder, to include Diagnostic Codes 5200 and 5203. As an initial matter, the Board notes that the Veteran's dominant hand is his right hand, and as his shoulder injury is to his left (non-dominant) shoulder, such shall be considered his "minor" side, for rating purposes. A rating in excess of 20 percent for the minor extremity under Diagnostic Code 5202 requires evidence of the following: fibrous union of the humerus warrants a 40 percent rating; nonunion of the humerus (false flail joint) warrants a 50 percent rating; and loss of head of the humerus (flail shoulder) warrants a maximum 70 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5202. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for left shoulder recurrent dislocation. The Veteran attended VA examinations in February 2014, July 2019, and November 2020. Each VA examiner determined the Veteran did not have fibrous union of the humerus, false flail joint, or flail shoulder. A review of treatment notes also fails to show the Veteran was noted to have any of these conditions. Therefore, the Veteran is not entitled to a higher rating for left shoulder recurrent dislocation. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the Board notes that the evidence of record fails to reflect that the Veteran's shoulder disability is manifested by ankylosis or clavicle or scapula impairment, thereby rendering the related Diagnostic Codes of 5200 and 5203 inapplicable. Additionally, the Board notes that the VA rating code has been changed, effective February 7, 2021, with new criteria for various musculoskeletal disabilities, to include the shoulder. The Board has, however, considered these pertinent changes in the new rating code, and have determined that such new criteria only further define the terms of limitation of motion, and the new criteria provide no basis to change the outcome herein. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature and severity of his service-connected left shoulder and notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are noted to be contemplated by the criteria for the disability rating currently assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected left shoulder disability. Consequently, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for left shoulder recurrent dislocation. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for a back disability is remanded. The Board finds that the last VA examination afforded to the Veteran's assessing the nature and severity of the Veteran's service-connected back disability to be inadequate, and remand is required for the VA to fulfill its duty to the Veteran. Barr v. Nicholson, 21 Vet. App. 303 (2007). When medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Here, the Veteran was afforded a VA examination in November 2020 to assess the nature and severity of his service-connected back disability, to include his compression fractures. Upon examining the Veteran, and his medical history, the VA examiner diagnosed the Veteran with his compression fractures of his L1 and plate compression fractures of his L1-L2, along with degenerative disc disease (DDD), and radiculopathy of the lower left extremity (LLE). At the conclusion of the examination report, however, the examiner explicitly noted that both the DDD and LLE were separate disabilities from the Veteran's service-connected compression fractures, and that such conditions were less likely than not caused, or secondary to, the Veterans service-connected back disability. The Board finds that the VA examiner's report and opinion to be inadequate on several fronts. First, the Board notes that the examiner did not separate or distinguish any of the symptomologies noted in the examination for the Veteran's back from any symptoms attributable to other lumbar spine diagnoses; nor did the VA examiner provide any statement regarding whether any such symptoms and manifestations could be distinguished. Second, the Board points out that while the examiner explicitly noted that the Veteran's DDD and LLE were not "caused" by the Veteran's service-connected compression fractures, the examiner failed to note if such separate conditions were aggravated by the service-connected back condition. As a result, the Board cannot fully access the manifestations of the current service-connected low back disability or adequately determine whether the appropriate rating for the disability should also consider secondary lumbar spine diagnoses. Consequently, as the VA examiner failed to provide an adequate examination and opinion, the Board must find that remand is required to acquire an addendum opinion. 2. Entitlement to a TDIU is remanded. The Veteran also seeks entitlement to a TDIU based on his service-connected disabilities. As the TDIU claim is inextricably intertwined with the remanded issue herein, consideration of the TDIU must be remanded. The matters are REMANDED for the following action: 1. Obtain any relevant outstanding treatment records. 2. After the above development has been completed to the extent possible, obtain a VA medical opinion addressing the Veteran's various back disabilities. The entire claims file and this remand should be made available to and be reviewed by the examiner in conjunction with this request. If the examiner determines that a physical examination is warranted one should be conducted. The examiner is asked to opine as to: (a.) Whether it is at least as likely as not that the Veterans' DDD of the back and associated LLE disabilities, were caused by his service-connected back compression fracture disability? (b.) If not caused by the compression fracture disability, is it at least as likely as not that the Veteran's DDD and/or LLE disability has been worsened beyond normal progression by his service-connected back disability? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran's back compression fracture disability caused any incremental increase, even transient, in other parts of his back, regardless of permanence. (c.) If the examiner finds that the Veteran's DDD and/or LLE disabilities have been worsened beyond normal progression (aggravated) by his service-connected back disability, please attempt to quantify the degree of aggravation beyond the baseline level of the disability that is attributable. (d.) If the examiner finds negative to both above nexuses, the examiner must delineate and separate the symptomologies associated each "separate" disability identified of the back; if this is not possible, or there are overlapping symptoms in which cannot be distinguished, the examiner must explicitly state as such. (Continued on the next page) 3. Undertake any necessary development for the TDIU claim. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.