Citation Nr: 21069452 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-30 802 DATE: November 18, 2021 ORDER Effective August 18, 2011, a 20 percent rating for right shoulder tendinosis is granted. Effective April 3, 2017, a rating of 20 percent for degenerative disc disease (DDD) of the thoracolumbar spine is granted. REMANDED A rating in excess of 20 percent for right shoulder tendinosis. A rating in excess of 20 percent for DDD of the thoracolumbar spine. FINDINGS OF FACT 1. From August 18, 2011, the Veteran's right shoulder tendinosis has been manifested by at least painful motion. 2. From April 3, 2017, the Veteran's DDD of the thoracolumbar spine has been manifested by at least muscle spasms severe enough to result in an abnormal gait, and by forward flexion limited to 60 degrees or less. CONCLUSIONS OF LAW 1. Effective August 18, 2011, the criteria for a 20 percent rating for right shoulder tendinosis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5201. 2. Effective April 3, 2017, the criteria for a 20 percent rating for DDD of the thoracolumbar spine have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2006 to November 2006, July 2007 to August 2008, June 2009 to August 2010, and October 2013 to November 2014. He had additional service in the Army National Guard. The case is on appeal from an April 2017 rating decision. In December 2020, the Veteran testified at a Board hearing. The record was held open for 90 days and additional evidence was thereafter submitted. General Increased Rating Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 1. A higher rating for right shoulder tendinosis. The procedural history of this issue informs the present outcome of the claim. The Veteran was granted service connection for his right shoulder in an August 2012 rating decision at 10 percent, effective August 18, 2011. Thereafter, the Veteran submitted a new claim for increase in April 2013 for an increased rating, within one year of the August 2012 rating decision. In the April 2013 submission, the Veteran noted that he had painful movement of the right shoulder joint. Although this was a claim, the submission also constitutes new and material evidence. As this new and material evidence was received within one year of the August 2012 rating decision, the evidence must be considered as being filed with the initial claim. See 38 C.F.R. § 3.156(b). See also Beraud v. Shinseki, 766 F.3d 1402 (Fed. Cir. 2014); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242 (2010). The evidence from that time period shows painful motion of the right shoulder. Painful motion is entitled to at least the minimum compensable rating for a joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). For the shoulder, the minimum rating for limitation of motion is 20 percent. See 38 C.F.R. § 4.71a, DC 5201. Thus, the Board concludes that a 20 percent rating is warranted for right shoulder tendinosis, effective August 18, 2011. The issue of whether an even higher rating for right shoulder tendinosis is warranted is addressed further in the remand section. This intermediary grant of 20 percent does not prejudice the Veteran. 2. A rating in excess of 10 percent for DDD of the thoracolumbar spine prior to August 20, 2020; and in excess of 20 percent thereafter. Unlike the right shoulder claim, there is no new and material evidence received within one year after a prior rating decision for the spine. In connection with the claim, the Veteran underwent another VA examination in April 2017. He reported constant low back pain with a burning sensation. It was recorded that the Veteran did not report flareups. ROM testing was forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The Veteran was not examined immediately after repeated use over time or a flareup, and was not provided any estimated loss of ROM. The examiner noted that the Veteran did not exhibit guarding or muscle spasms, radiculopathy, ankylosis, IVDS, neurologic abnormalities, or use of assistive devices. She additionally stated that there was no functional impact on his work. At the most recent VA examination in August 2020, diagnoses of DDD of the lumbar spine and Scheuermann's disease (with kyphosis) were added. The Veteran reported progressively worsening symptoms in the past 4 to 5 years, and daily frequent flareups. While he described pain radiating to the right buttock area, he denied numbness or tingling in the lower extremities. Pain was noted on all ROM testing, but no pain with weightbearing. Although not examined during a flareup, the examiner estimated ROM during a flareup to be forward flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. The examiner indicated no guarding or muscle spasms, radiculopathy, ankylosis, neurologic abnormalities, and no use of assistive devices. The functional impact of his spine was noted as losing 2 to 4 weeks of work as a mechanic in the past year, with moderately decreased ability in repetitive bending and lifting weight over 20 pounds. The Board finds that the Veteran is warranted a rating of 20 percent from April 3, 2017. In this regard, the evidence shows that the condition has been manifested by at least muscle spasms severe enough to result in an abnormal gait, and by forward flexion limited to 60 degrees or less. Accordingly, the Board concludes that at least a 20 percent rating is warranted for the lumbar spine condition, effective April 3, 2017. See 38 C.F.R. § 4.71a, DC 5242. The issue of whether an even higher rating for DDD of the thoracolumbar spine is warranted is addressed further in the remand section. This intermediary grant of 20 percent since April 3, 2017 does not prejudice the Veteran. REASONS FOR REMAND 1. A rating in excess of 20 percent for right shoulder tendinosis. 2. A rating in excess of 20 percent for DDD of the thoracolumbar spine. The Board finds that a VA examination for both the right shoulder and thoracolumbar spine is warranted on remand. See Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that, per 38 C.F.R. § 4.59, in order to assess the effect of painful motion, ROM tests for both passive and active motion, and in both weightbearing and non-weightbearing circumstances, should be done). See also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that the examiner should "estimate the functional loss that would occur during flares"). In light of this remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: (Continued on the next page) 1. Obtain updated VA treatment records dated since June 2020. 2. Schedule the Veteran for a VA examination of his service-connected right shoulder and thoracolumbar spine conditions. This should include findings that comply with Correia and Sharp. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.