Citation Nr: 21066605 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-56 358 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 20 percent for painful scars status post left shoulder surgery is denied. REMANDED The issue of entitlement to a rating in excess of 20 percent for a left shoulder disability, excluding the period from August 23, 2016 to November 30, 2016 when a temporary total rating is assigned, is remanded. The issue of entitlement to an extension of a temporary total rating beyond March 1, 2017, based on the need for convalescence following an August 23, 2016 left shoulder surgery disability is remanded. Entitlement to a temporary total rating based on the need for convalescence following a May 2017 left shoulder surgery is remanded. Entitlement to service connection for a right shoulder disability, as secondary to his left shoulder disability, is remanded. Entitlement to a total disability individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's painful scars status post left shoulder surgery are not both painful and unstable. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent rating for painful scars are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to May 1982. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in July 2021 and a transcript of the hearing has been associated with the claims file. 1. Entitlement to a rating in excess of 20 percent for painful scars status post left shoulder surgery effective December 10, 2019 is denied. Under the criteria for Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings of 20 and 30 percent are warranted if there are three or four, or five or more, unstable or painful scars, respectively. If one or more scars are both unstable and painful, a 10 percent rating is added to the rating that is based on the total number of unstable or painful scars. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1. Additionally, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804. In this regard, the evidence of record includes a March 2020 VA examination reports which documents three scars associated with the Veteran's left shoulder rotator cuff repair. The examiner noted that the Veteran had three scars related to his left shoulder disability and one left elbow scar. See March 2020 VA Examination. Additionally, the examiner noted that tenderness was present at the site of two scars. Id. However, the examiner noted that the Veteran's scars were stable and there was no evidence of frequent loss of the skin covering the scars. Id. Based on the foregoing, the Board finds that the Veteran's painful scars associated with his left shoulder disability is consistent with no higher than a 20 percent rating under Diagnostic Code 7804. There is nothing to support any additional disabling effects caused by the Veteran's scarring, as the scars are not documented as unstable. Therefore, the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for the scars at any point during the period on appeal. REASONS FOR REMAND 1. Increased Rating for Left Shoulder Disability Although the Board regrets further delay, the Board finds that a remand is necessary for a new VA examination and development by the RO. As an overview of this portion of the decision, the Board will first address how the Veteran's testimony regarding his shoulder's range of motion contradicts with the VA examiners' findings. Second, the Board will explain why in order to fully adjudicate this increased rating claim, development must be conducted to determine whether the Veteran's left shoulder disability caused or aggravated his right shoulder disability. Third, the Board will address why development is necessary regarding whether the Veteran's left shoulder disability or surgery caused neurological problems in his left arm. Lastly, the Board will explain why it is not considering as a part of this increased rating claim whether the Veteran's left shoulder disability caused a sleep impairment due to pain. First, at the July 2021 Board hearing, the Veteran testified that when he filed his claim in 2016, he could only raise his left arm about 35 to 40 percent up, but he could not raise it all the way up. See July 2021 Board Hear. Trans. pp. 2-3. However, the January 2016 VA examiner noted that the Veteran had forward flexion and abduction to 140 degrees, which demonstrates that the Veteran could at least raise his arm to shoulder level. See January 2016 VA Medical Opinion. Additionally, the Veteran testified that he still cannot raise his arm to shoulder level. See July 2021 Board Hear. Trans. p. 5. However, the March 2020 VA examiner noted that the Veteran had forward flexion and abduction to 180 degrees, which is the full range of motion for his shoulder. See March 2020 VA Medical Opinion. Moreover, the Veteran reported that the VA examiner assisted him at his examination by moving his arm further than it should have been moved, which caused him pain. See July 2021 Board Hear. Trans. p. 5. Because the Veteran's statements regarding his shoulder's range of motion contradicts the VA examinations' findings, the Board finds that the VA examinations do not accurately report the severity of the Veteran's left shoulder disability throughout the period on period. Therefore, the Board finds that January 2016 and March 2020 VA medical opinions are inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Second, moving to the increased rating claim and right shoulder disability, the Board finds that in order to properly adjudicate the Veteran's increased rating claim for his left shoulder disability, a VA examination is necessary to determine whether the Veteran's service-connected left shoulder disability has caused and/or aggravated his right shoulder condition. In Morgan v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that the "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." 31 Vet. App. 162, 167 (2019). In doing so, the Court held this included secondary service connection. Id; see also Long v. Wilkie, 33 Vet. App. 167 (en banc) (2020); Bailey v. Wilkie, 33 Vet. App. 188 (2021). Further, the Court held in Grimes v. McDonough that a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is initially granted or denied by the RO. Grimes v. McDonough, 2021 U.S. App. LEXIS 18-1017, *8-11 (Fed. Cir. Apr. 28, 2021). Moreover, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App 1, 5 (2009). Here, the Veteran contends that his right shoulder disability is due to him overcompensating with his right arm because of his left shoulder disability. See July 2021 Board Hearing Trans. p. 9. By broadly construing the Veteran's testimony, the Board finds that a secondary service connection claim has been raised. After reviewing the record, the Board finds that there is no medical evidence addressing whether the Veteran's left shoulder disability has caused and/or aggravated his right shoulder condition. Therefore, a VA examination is needed to determine whether the Veteran's right shoulder disability is related to the Veteran's service-connected left shoulder disability. Third, moving to the issue of neurological problems in the left shoulder, the Board finds that a VA examination is necessary to determine whether the Veteran's service-connected left shoulder disability or surgery residuals have resulted in neurological issues in the Veteran's left upper extremity. Specifically, the Veteran's August 2016 and November 2016 private treatment records showed numbness, tingling, and neuropathic pain in the left upper extremity. See Private Treatment Records dated August 2016 and November 2016. Therefore, a VA examination is needed to determine whether these neurological signs and symptoms are related to his left shoulder disability or are residuals from his left shoulder surgery. Lastly, the Board recognizes that the Veteran's left shoulder disability's caused pain that disrupted the Veteran's sleep. See November 2016 Private Treatment Record. Although the Board is sympathetic to the Veteran's contentions regarding his left shoulder pain disrupting his sleep, the Board finds that it is unable to separately consider and rate the Veteran for this sleep impairment. Under 38 C.F.R. § 4.59, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Thus, the Board finds that the Veteran's current rating for his left shoulder disability compensates the Veteran for his pain, including his disruption in sleep due to pain. Since his sleep impairment was caused by his pain, and the Veteran has not otherwise asserted that he has a distinctly diagnosed sleep disorder, the Board finds that it cannot separately develop the record for this issue. In determining that an additional VA examination of the left shoulder is required, the Board finds that the examiner should also provide a retrospective opinion regarding the level of severity of the Veteran's left shoulder disability throughout the period on appeal. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The VA examiner should determine whether the Veteran's right shoulder disability was caused by and/or aggravated by his service-connected left shoulder disability. Lastly, the examiner should determine whether the Veteran's left shoulder disability and/or left shoulder surgery residuals caused and/or aggravated any neurological problems. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his left shoulder disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). 2. Temporary Total Ratings The Veteran is in receipt of a temporary total disability rating for convalescence from August 23, 2016 through November 30, 2016, following an August 2016 left shoulder surgery. He contends that his temporary total rating should have been extended because it took him longer than three months to recover and he was scheduled for another shoulder surgery in May 2017. See December 2016 VA 21-4138 Statement in Support of Claim; see also, July 2021 Board Hear. Trans. p. 9. Under 38 C.F.R. § 4.30, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. In order to attain the temporary total disability rating, the Veteran must demonstrate that his service-connected disability resulted in: (1) surgery necessitating at least 1 month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of 1 major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). An extension of 1, 2, or 3 months of a temporary total disability rating may be granted based on the factors enumerated above. 38 C.F.R. § 4.30(b)(1). Extensions of 1 to 6 months beyond the initial 6-month temporary total disability rating may be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). In the instant case, the Veteran is currently in receipt of a temporary total rating for 3 months' duration following the August 23, 2016 left shoulder surgery, which ended on November 30, 2016. The Veteran's post operation medical files show that he still suffered from marked loss of motion and shoulder pain, but it is unclear whether the Veteran met the criteria enumerated in 38 C.F.R. § 4.30(a) that would entitle him to an extension beyond November 30, 2016. See January 2017 Private Treatment Record. Therefore, the Board finds that a remand is necessary for an opinion regarding whether between December 1, 2016 through February 2017, whether the Veteran experienced any of the post-operative residuals listed in in 38 C.F.R. § 4.30(a). Additionally, the Board also acknowledges that the Veteran reportedly had a second left shoulder surgery in approximately May 2017, which is within a year of his first shoulder. See August 2017 Private Treatment Record. However, to reward an additional temporary total rating for his second left shoulder surgery, the Board requires the hospital discharge record or outpatient release, which is not in the claims file. As such, remand is warranted so that the RO may attempt to obtain these records. 3. TDIU The claim for entitlement to a TDIU is inextricably intertwined with the claims for service connection and increased ratings that are remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran's TDIU claim must be deferred pending the outcome of such claims. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (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 matters are REMANDED for the following action: 1. Ask the Veteran to complete and return a VA Form 21-4142 for all treatment records, physical therapy records, and hospital discharge record or outpatient release surgery records from his three shoulder surgeries. 2. After the above has been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity of his left shoulder disability, etiology of his right shoulder disability, and the nature and etiology of any neurological disability affecting his left upper extremity. The claims file must be reviewed by the examiner in conjunction with the examination. All appropriate tests and studies should be conducted, and the results reported in detail. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Please include range of motion testing in active motion, weight-bearing, passive motion, and non-weight-bearing. If testing in passive motion and non-weight-bearing is unnecessary, please explain why. (a.) Give a retrospective opinion regarding the functional effects of the pain caused by the Veteran's service-connected left shoulder disability for the period from November 19, 2014 to present. Based upon the information elicited, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is limited to 45 degrees (the measurement required for the next higher rating). Please explain why or why not. Please note that the Veteran stated that he could only raise his arm 35 to 40 percent during his January 2016 VA examination. Please ask the Veteran to demonstrate what 35 to 40 percent means, so that it can be translated into degrees on the medical report. (b.) After reviewing the Veteran's post-operative treatment records and based on the Veteran's lay statement, please determine whether the severe postoperative residuals from December 1, 2016 to March 1, 2017 included any of the following: (1) incompletely healed surgical wounds; (2) stumps of recent amputations; (3) therapeutic immobilization of 1 major joint or more, (4) application of a body cast, (5) the necessity for house confinement, (6) necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (c.) Please state whether it is at least as likely as not that the Veteran's right shoulder disability was caused by the service-connected left shoulder disability. (d.) If you determine that the Veteran's left shoulder disability did not cause his right shoulder disability, please state whether it is at least as likely as not that the Veteran's right shoulder disability was aggravated by his left shoulder disability. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). (e.) For any neurologic disability found, state whether it is at least as likely as not (i.e. a 50 percent of greater probability) that such condition was caused by his service-connected left shoulder disability or residuals from left shoulder surgery. (f.) For any neurologic disability found, state whether it is at least as likely as not (i.e. a 50 percent of greater probability) that the condition underwent an incremental increase (aggravated), regardless of permanence, by service-connected left shoulder disability or residuals from left shoulder surgery. A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). A rationale for any opinions expressed should be set forth. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. All findings and conclusions should be supported with a complete rationale which reflects the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.