Citation Nr: 21067954 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-66 063 DATE: November 8, 2021 ORDER An initial rating of 40 percent, but no higher, for a left shoulder disability is granted. Special monthly compensation (SMC) based on the Veteran's need for aid and attendance is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) for the period on appeal prior to July 17, 2019 is remanded. Entitlement to a separate compensable rating for neurological manifestations of the service-connected left shoulder disability is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's left shoulder disability was characterized by limitation of motion of the arm to 25 degrees from side, but not ankylosis or other impairment of the humerus. 2. For the entire period on appeal, the Veteran is entitled to SMC at the (l) level based on a factual need for the regular aid and attendance of another. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for an initial rating of 40 percent, but no higher, for a left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201 (2020). 2. For the entire period on appeal, the criteria for entitlement to payment of SMC at the (l) level have been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. In an April 2020 rating decision, the RO granted a TDIU, effective July 17, 2019; however, this did not cover the entire period on appeal. Therefore, the issue of unemployability has been raised by the record and the issue of entitlement to a TDIU for the period on appeal prior to July 17, 2019 has been added to the instant appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). In addition, the Board finds that the issue of entitlement to SMC based on the need for aid and attendance has been raised by the record, and is considered part and parcel of the underlying increased rating claim. The SMC claim has been added to the instant appeal. See Akles v. Derwinski, 1 Vet. App. 118 (1991). The Veteran requested a Board hearing in his December 2017 VA Form 9. However, in May 2021, the Veteran withdrew his request for a hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an initial rating in excess of 30 percent for a left shoulder disability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Where there is a question as to which of two evaluations shall be applied, 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court of Appeals for Veterans Claims (Court) 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, 42 (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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran is in receipt of a 30 percent initial rating for a left shoulder disability. He contends that a higher rating is warranted. The Veteran's left shoulder disability is rated under 38 C.F.R. § 4.71a , DC 5201, applicable to limitation of motion of the arm. As a foundational matter, ratings based on function impairment of the upper extremities are predicated upon which extremity is the major extremity, with only one extremity being considered major. 38 C.F.R. § 4.69. The medical evidence in this case is inconsistent as to which upper extremity is the major extremity. The July 2012 VA examination report and April 2019, May 2019, August 2019, and January 2020 VA treatment records indicate that the Veteran's left upper extremity is the major extremity; however, the April 2016 and January 2020 VA examination reports indicate that the Veteran's right upper extremity is the major extremity. As the evidence is in relative equipoise, the Board resolves all reasonable doubt in the Veteran's favor and finds that the Veteran's left upper extremity is the major extremity. In terms of the pertinent rating criteria, DCs 5200 through 5203 address disability ratings for the shoulder and arm. However, there is no evidence that the Veteran has ankylosis of the left shoulder (DC 5200), impairment of the humerus of the left shoulder (DC 5202), or impairment of the clavicle or scapula (DC 5203). In addition, DC 5203 does not provide for a rating in excess of 30 percent. Therefore, DCs 5200, 5202, and 5203 are not for application. DC 5201 provides for a maximum 40 percent rating for limitation of the major arm to 25 degrees from the side. 38 C.F.R. § 4.71a. (This diagnostic code has been revised, effective February 7, 2021. The revisions simply provide goniometric measurements for greater precision in the rating process.) Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Based on a review of the evidence, both lay and medical, the Board finds that a rating of 40 percent, but no higher, is warranted, as the weight of the adequate and competent evidence reflects that the Veteran's left shoulder disability was characterized by limitation of motion to no more than 25 degrees from the side. See January 2020 VA examination report (indicating left shoulder flexion and abduction were 20 degrees), October 2018 VA pain management note (indicating active range of motion limited to five degrees of both flexion and abduction), June 2018 VA pain management note (indicating severe limitation of passive and active range of motion of left shoulder due to pain, with 10 degrees of abduction, 15 degrees of flexion, and 5 degrees of extension), October 2017 VA pain management note (indicating left shoulder passive abduction and flexion limited to 10 degrees before pain prevented further testing), September 2014 and November 2015 VA rehabilitation medicine treatment records (indicating left shoulder active range of motion was 20 degrees with abduction and flexion), and November 2012 VA treatment note (cannot abduct left shoulder); but see July 2012 VA examination report (left shoulder flexion of 70 degrees (after repetitive use testing) and abduction of 45 degrees, both with no objective evidence of painful motion), April 2016 VA examination report (noting both left shoulder flexion and abduction were 50 degrees, with objective evidence of painful motion), and October 2019 VA treatment note (indicating limited range of motion of left shoulder to about 45 degrees). This is the maximum schedular rating available under DC 5201. The Board notes that the July 2012 and April 2016 VA examinations were not adequate, as they did not describe the Veteran's functional impairment during flare-ups or after repetitive use, including in terms of loss of range of motion, did not indicate the point at which pain began on range of motion testing, and did not include information on passive range of motion or pain on both weight bearing and non-weight bearing. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The Board notes that the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84- 5 (1997). Thus, no higher rating is available due to functional loss. Finally, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to SMC based on the Veteran's need for regular aid and attendance. SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. See 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352. Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: Inability of claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions that the veteran is unable to perform should be considered in connection with his or her condition as a whole. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). As an initial matter, the Board notes that the Veteran was in receipt of service connection for a left shoulder disability (rated 40 percent disabling from September 30, 2013) and major depressive disorder (rated 70 percent disabling from July 17, 2019). His combined disability rating is 40 percent from September 30, 2013 to July 16, 2019, and 80 percent thereafter. He is also in receipt of a TDIU, effective July 17, 2019. On review, the evidence establishes that the Veteran requires regular personal assistance due to his service-connected disabilities. Specifically, the evidence indicates that the Veteran requires care or assistance on a regular basis with dressing and undressing himself, and keeping himself ordinarily clean and presentable. The evidence reflects that his wife has to help him put on coats and shirts due to his left shoulder disability. See September 2014, November 2015, June 2018 November 2019, and January 2020 VA treatment records. An October 2019 VA orthopedic surgery note indicated that the Veteran had marked problems with all activities of daily living due to his left shoulder disability. An April 2019 VA treatment record indicated that the Veteran needed help to make his bed and dress himself due to his left shoulder disability. A January 2019 VA treatment record indicated that the Veteran was able to dress himself, but had trouble showering due to his left shoulder disability. An October 2018 VA treatment record indicated that the Veteran required help with bathing himself and dressing, and would often drop things from his left hand, like a cup of coffee. A September 2018 VA treatment record indicated that the Veteran was unable to move his left shoulder and could only hold his morning coffee if he kept his shoulder tucked in to his body. A December 2014 VA rehabilitation progress note indicated that the Veteran's left shoulder pain limited all of his activities of daily living. Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the Veteran has a factual need for the regular aid and attendance of another person due to his service-connected disabilities for the entire period on appeal; therefore, the criteria for SMC at the (l) level based on the need for regular aid and attendance of another person due to service-connected disabilities have been met for the entire period on appeal. REASONS FOR REMAND 1. Entitlement to a TDIU for the period on appeal prior to July 17, 2019 is remanded. The Veteran is not entitled to a TDIU for the period prior to July 17, 2019 based on his current schedular rating. See 38 C.F.R. § 4.16 (indicating that a TDIU is warranted where the Veteran meets certain schedular requirements but that it is VA's policy that a TDIU is warranted whenever a Veteran is unemployable due to service connected disability). However, the Veteran contends that he was unable to secure or maintain substantially gainful occupation due to his service-connected disabilities prior to July 17, 2019. As the Board cannot consider entitlement to extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance, this issue must be remanded for referral to the Director, Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). 2. Entitlement to a separate compensable rating for neurological manifestations of the service-connected left shoulder disability is remanded. The Veteran's VA treatment records indicate that he may have neurological manifestations of the service-connected left shoulder disability. Specifically, February 2020 and December 2019 VA physical medicine rehabilitation notes indicated that the Veteran has severe left shoulder pain with radiating left upper extremity pain and paresthesias. An October 2018 VA pain management note indicated that the Veteran's left shoulder pain was constant burning and sharp, with occasional shooting sensation. A June 2017 VA pain management note indicated that the Veteran has left upper extremity radiating symptoms with numbness and tingling on digits four and five. A March 2017 VA pain management note indicated that the Veteran had no new left upper extremity weakness, numbness, or tingling, just the same left shoulder pain, but with occasional burning. A December 2014 VA rehabilitation progress note indicated that the Veteran described having severe (9/10) left shoulder pain, which he described as a "burning." While the Veteran has a history of cervical spine surgery, an October 2017 VA anesthesia pain consultation note indicated that there is no evidence of any cervical radicular or axial component to the Veteran's left shoulder pain. Based on this evidence, a separate compensable rating may be warranted for neurological manifestations of the Veteran's left shoulder disability. Therefore, remand is required to determine the nature and severity of any neurological manifestations of the Veteran's left shoulder disability. The matters are REMANDED for the following actions: 1. Refer the issue of entitlement to a TDIU for the period prior to July 17, 2019 to the Director, Compensation Service, for consideration of an extraschedular TDIU. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of any neurological manifestations of the left shoulder disability. The claims folder, including a copy of this Remand, must be made available to, and reviewed by, the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any neurological symptoms that are etiologically related to his left shoulder disability and, if so, the nature and severity of such symptoms. Attention is called to the following: a. The February 2020 and December 2019 VA physical medicine rehabilitation notes indicating that the Veteran has severe left shoulder pain with radiating left upper extremity pain and paresthesias. b. The October 2018 VA pain management note indicated that the Veteran's left shoulder pain was constant burning and sharp, with occasional shooting sensation. c. The October 2017 VA anesthesia pain consultation note indicating that there is no evidence of any cervical radicular or axial component to the Veteran's left shoulder pain. d. The June 2017 VA pain management note indicated that the Veteran has left upper extremity radiating symptoms with numbness and tingling on digits four and five. e. The March 2017 VA pain management note indicated that the Veteran had no new left upper extremity weakness, numbness, or tingling, just the same left shoulder pain, but with occasional burning. f. The December 2014 VA rehabilitation progress note indicated that the Veteran described having severe (9/10) left shoulder pain, which he described as a "burning." A thorough explanation must be provided for the opinion(s) rendered. 3. Then, readjudicate the remaining issues on appeal. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.