Citation Nr: 21069471 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 12-11 732 DATE: November 18, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for hypertension is denied. Entitlement to an initial disability rating in excess of 20 percent prior to December 29, 2020, for a left shoulder slap tear, with degenerative arthritis (left shoulder disability) is denied. Entitlement to a disability rating of 40 percent, and no higher, from December 29, 2020, and no earlier, for a left shoulder slap tear, with degenerative arthritis (left shoulder disability) is granted. REMANDED Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a special monthly compensation (SMC) based on the need for aid and attendance or housebound status is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that Veteran's hypertension has manifested with diastolic pressure of predominantly 110 or more; or systolic pressure of predominantly 200 or more, at any time during the appeal period. 2. The preponderance of the evidence is against finding that the Veteran's left shoulder disability manifested with a limitation of motion to less than shoulder level, prior to December 29, 2020. 3. Resolving reasonable doubt in the Veteran's favor, the functional limitation he experiences during flares of his left shoulder condition more closely approximate a limitation in motion to 25 degrees or less from December 29, 2020, forward. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7101. 2. Prior to December 29, 2020, the criteria for an initial disability rating in excess of 20 percent, for a left shoulder disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Code 5201. 3. Resolving reasonable doubt in the Veteran's favor, from December 29, 2020 and forward, the criteria for a disability rating of 40 percent, and no higher, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1966. This matter comes before the Board of Veteran's Appeals (Board) from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2019 when the claims were remanded for development. In pertinent part, the July 2019 remand requested the Veteran's address to be verified and directed the RO to "ensure that all correspondence necessary for complete compliance with this remand and [the March 2018 remand directives] have been sent to the Veteran's correct mailing address." This development was requested due in part to the Veteran's representative argument in his Appellate Brief of May 2019 that the Veteran had failed to report to the examinations scheduled because of mitigating circumstances and the Board's own observation that the address the examination scheduling report provided differed from the address available in other databases. See Appellate Brief of May 2019 and July 2019 Board remand. Thus, the Board concluded that in view of the possibility that the correspondence regarding the examination could have been mailed to an address other than the Veteran's current address, the matter needed to be remanded for address verification and the examinations that had been requested in the March 2018 remand. The claims file indicates that after the July 2019 remand, the RO was unsuccessful in contacting the Veteran to verify his address. However, in June 2021, a report of general information noted the Veteran's address, and that the Veteran was ready to report for his examination, as confirmed by his daughter who is also his caretaker. The Veteran's daughter also requested the examination to take place no more than 100 miles from their home. See VA Form 27-0820, Report of General Information, associated with the claims file in June 2021. The following month, the Veteran was examined, and the examination reports have been associated with the claims file. Other documents associated with the claims file related to the scheduling of the Veteran's examinations note that the Veteran is limited in mobility due to medical conditions- to include a diagnosis of dementia/Alzheimer's. See document associated with the claims file in November 2020. It is noted that the July 2019 Board remand decision was sent to the same address noted in the report of general information of June 2021. Additionally, it is noted that the most recent correspondence regarding the scheduling of the Veteran's examinations was also sent to that address. See exam request of December 2020 and VA letter of May 2021. Further, VA medical records for September 2021 show that the Veteran's current address was confirmed by a social worker and remains the same as noted in the report of general information of June 2021. See VA medical records for September 2021. In view of these findings, the Board finds the July 2019 remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). In reaching this conclusion the Board observes that the Veteran's representative asserted that the July 2019 remand directive was to "resend all correspondence necessary to include the remand from March 2018 to be sent to the appellant's correct mailing address." See Appellate Brief of September 2021, page 3. However, the Board observes that the directive of July 2019 did not expressly request that all correspondence be resent to the Veteran, but rather that the correct address be verified and that any correspondence necessary for compliance with the remand directives be sent to the correct address. As explained above, that directive was substantially complied with, as the address of record was confirmed in the June 2021 report of general information and correspondence necessary for compliance with the directives (correspondence regarding the scheduling of the examinations), was sent to the correct address. Further, the examinations requested in the March 2018 and the July 2019 remands were completed in July 2021. Thus, the Board finds the March 2018 and the July 2019 remand directives were substantially complied with and no further remand is necessary to resend all correspondence to the Veteran- as this would only result in further delay without additional benefit to the Veteran regarding his claims of increased rating before the Board on appeal. See generally Sondel v. West, 13 Vet. App. 213, 221 (1999). It is noted that the July 2019 remand and the most recent supplemental statement of the case (SSOC) were sent to the Veteran's current address. TDIU and SMC In this case, the Board has jurisdiction to consider entitlement to a TDIU as part of the underlying increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). As such, the matter has been added as a separate issue to this appeal and will be addressed in more detail in the REMAND section of this decision. Additionally, the Board observes that in September 2021, a VA 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, was associated with the claims file. Housebound status and Permanent Need for Regular Aid and Attendance are types of special monthly compensation (SMC) payable to veterans who meet the eligibility criteria for such benefit. It is noted that in the present case the AOJ has not adjudicated the SMC claim in the first instance. The Court has held that SMC is an ancillary benefit and should be addressed by the Board when raised by the claimant or reasonably raised by the record, regardless of whether a formal claim is submitted. Payne v. Wilkie, 31 Vet. App. 373 (2019). Pursuant to Payne and considering that the AOJ has not adjudicated the claim for SMC in the first instance, the Board has added the matter to the issues on appeal and will remand it. See also Young v. Shinseki, 25 Vet. App. 201, 204 (2012). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. In those situations, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 1. Entitlement to an initial disability rating in excess of 10 percent for hypertension As a threshold matter, the Board notes the Veteran was granted service connection for hypertension in a January 2012 rating decision. This rating decision was notified in February 2012. The Veteran did not present a notice of disagreement (NOD) as to this January 2012 rating decision nor was new evidence pertaining to the Veteran's hypertension associated with the claims file within one year of the notification. As such, the January 2012 rating decision became final. Then, in July 2013, the Veteran presented a statement where he noted that in February 2012, he had received a letter notifying him about the rating of 10 percent for hypertension and asserting that "now 2013" he had severe medical issues and needed to be re-rated. This statement was presented along a VA Form 9 pertaining to other issues. See correspondence of July 2013. The RO interpreted this statement as a claim for a higher rating for hypertension and an April 2014 rating decision continued the Veteran's hypertension rating of 10 percent. The Veteran disagreed with that decision by presenting a NOD in June 2014 and consistently pursued his appeal regarding a higher disability rating for his hypertension. Accordingly, the appellate period before the Board is from the date the Veteran's claim for a higher rating was received, July 24, 2013, forward, to include the one-year look back period. The Veteran's hypertension is evaluated pursuant to diagnostic code (DC) 7101 and has been evaluated as 10 percent disabling throughout the appeal period. Thus, the question before the Board is whether at any time during the appeal period his hypertension has manifested with symptomatology consistent with a disability rating in excess of 10 percent, pursuant to DC 7101. Under DC 7101, hypertension with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, is rated 10 percent disabling. 38 C.F.R. § 4.104. Hypertension with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated 20 percent disabling. 38 C.F.R. § 4.104, DC 7101. Hypertension with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Id. Hypertension with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Id. The Veteran's medical records have been associated with the claims file which contain blood pressure readings throughout the appeal period. These records also show that the Veteran has been enrolled in the Care Coordination Home Telehealth (CCHT) program for hypertension since August 2010 and has regularly sent his blood pressure readings for monitoring by healthcare professionals. See generally VA medical records. Additionally, the Veteran has been examined by VA for his hypertension in August 2011, December 2013, and most recently in July 2021. See Hypertension Disability Benefits Questionnaire (Hypertension DBQ) of August 2011, December 2013, and July 2021. The Hypertension DBQs of record show that the Veteran has been on medication for his hypertension throughout the appeal period and contain various blood pressure readings taken the day of the examination. The Board finds the evidence of record to be sufficient to adjudicate the issue, since his medical records contain regular blood pressure readings throughout the appellate period, including quarterly averages. As such, the Board finds that no retrospective opinion regarding the Veteran's hypertension is necessary in the present case. See Appellate Brief of September 2021. Here, the evidence of record shows that the Veteran's hypertension has at no time during the appeal period manifested with diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. In other words, medical records for the appeal period show that the Veteran's hypertension has predominantly manifested with diastolic pressure lower than 110 and systolic pressure predominantly lower than 200. See generally VA medical records for the appeal period. Thus, the Board finds the preponderance of the evidence is against the finding that the Veteran's hypertension disability has manifested with symptomatology that more closely approximates a disability rating in excess of 10 percent at any time during the appeal period. In reaching this conclusion the Board has considered the Veteran's statements in favor of a higher disability rating, to include his assertion that his hypertension was not controlled with medication. See statement of September 2013 Generally, in assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Conversely, if the rating criteria specifically contemplate the effects of medication, Jones is inapplicable. See McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). Notably, the effects of medication are expressly contemplated in the rating criteria for hypertension as the 10 percent rating notes that the disability may require continuous medication. Thus, any ameliorative effects of the Veteran's blood pressure medication may not be discounted in applying the rating criteria to the Veteran's hypertension disability, pursuant to McCarroll. In support of the Veteran's statement regarding his hypertension not being controlled, the Board observes that the evidence of record shows his medication was adjusted at various times during the appeal period to better control his condition. However, the Board finds that these findings while pertinent for consideration of the Veteran's hypertension disability are not determinative as to the disability rating applicable to the Veteran's hypertension disability nor do they support a finding that his hypertension manifested with symptomatology that warranted a disability rating higher than 10 percent. Additionally, the Board has considered that some of the Veteran's medical records show blood pressure readings that appear to be outside the predominant range for the Veteran. Notably in August 2012, the Veteran was contacted by his medical care professionals because his blood pressure measurements were out of range. The out-of-range readings were noted as 165 systolic and 153 diastolic. Other blood pressure readings for that week and subsequent months were within the acceptable range (no higher than 160 systolic nor higher than 100 diastolic). See medical records for August 2012 and forward. Also, in October 2016 the Veteran reported that his diastolic had been 100 and the telehealth data does show a reading of 100 for diastolic. See medical records for October 2016. However, the abnormal or out-of-range blood pressure readings found in the Veteran's medical record show, at most, that his hypertension has manifested with diastolic pressure predominately 100 or less and/or systolic pressure predominantly less than 160; which is consistent with a 10 percent disability rating pursuant to DC 7101. Accordingly, after a review of the record, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for hypertension. As noted above, the evidence of record does not support the finding that the Veteran's hypertension disability has manifested with diastolic pressure predominantly of 110 or more; or systolic pressure predominantly of 200 or more, as required for a 20 percent rating under Diagnostic Code 7101. In other words, the Board finds that the overall disability picture for the Veteran's hypertension does not more closely approximate a 20 percent rating under DC 7101 during the appeal period, and a higher rating is not warranted. 38 C.F.R. § 4.104, Diagnostic Code 7101. 2. Entitlement to an initial disability rating in excess of 20 percent prior to July 14, 2021 and in excess of 30 percent, thereafter, for a left shoulder slap tear, with degenerative arthritis (left shoulder disability) Originally, the Veteran sought an initial disability rating in excess of 20 percent thereafter for his left shoulder disability. During the pendency of the appeal, the Veteran's left shoulder disability rating was increased from 20 percent to 30 percent, effective July 14, 2021. See July 2021 rating decision; see also SSOC of July 2021 denying a rating of 40 percent for the left shoulder disability. As the higher rating granted was not awarded for the complete appellate period nor does it constitute a full grant of the benefit sought, the matter remains on appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating). For the reasons explained below, the Board finds that the preponderance of the evidence is against finding that the Veteran's left shoulder disability manifested with symptomatology that more closely approximated a disability rating in excess of 20 percent prior to December 29, 2020 and that resolving reasonable doubt in the Veteran's favor, a disability rating of 40 percent from December 29, 2020 is warranted. As this is an appeal regarding the initial rating assigned to the Veteran's left shoulder disability, the appeal period is from the effective date of the award of service connection, July 24, 2013, forward. The Veteran's left shoulder disability is evaluated pursuant to DC 5003-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 5003 provides the criteria for evaluating degenerative arthritis, when established by X-ray findings. In pertinent part, DC 5003 notes that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. For purposes of rating disability from arthritis, the shoulder is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic code that focuses on limitation of motion of the shoulder is DC 5201, which provides different rating criteria depending on whether the service-connected disability affects the dominant arm (major) or the nondominant arm (minor). See 38 C.F.R. § 4.71a, DC 5201. As a threshold matter it is noted that the Veteran's left shoulder has been evaluated pursuant to the rating criteria of the major or dominant arm established in DC 5201, as he has been awarded a 30 percent disability rating for limitation of motion of the arm from midway between the side and shoulder level and has been denied a higher 40 percent disability rating; only available for the dominant or major arm pursuant to DC 5101. See SSOC of July 2021. As the Veteran's disability has been rated pursuant to the more favorable rating for the major or dominant arm, the Board will continue to apply the more favorable rating criteria to the Veteran's left shoulder disability. Further, the Shoulder and Arm Conditions Disability Benefits Questionnaire (Shoulder DBQ) of March 2014 noted the Veteran is ambidextrous- which would support the evaluation of the Veteran's left shoulder as his dominant arm. DC 5201 provides that limitation of motion of the arm at shoulder level warrants a 20 percent rating. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity and 20 percent rating for the minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. 38 C.F.R. § 4.71a, DC 5201. Thus, a 40 percent disability rating is the maximum schedular rating available pursuant to DC 5201 for the dominant (major) extremity. For VA compensation purposes, normal range of motion for the shoulder is 180 degrees of forward flexion, 180 degrees of abduction, and 90 degrees of external and internal rotation. See 38 C.F.R. § 4.71, Plate I. Forward flexion and abduction to 90 degrees amounts to "shoulder level." In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). A veteran is only entitled to a single disability rating under Diagnostic Code 5201 as that diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013) Medical records for the period on appeal have been associated with the claims file. These show that prior to the effective date of the award of service connection the Veteran's left shoulder disability manifested with abnormal range of motion. The VA medical records for March 2013 show that the Veteran's left shoulder flexion was limited to 170 degrees, abduction was limited to 150 degrees with pain, and external rotation was limited to 70 degrees with pain. The records for April 2013 show that the Veteran reported intermittent pain with certain movements of the shoulder and the examiner noted the Veteran had normal flexion to 180 degrees but was limited to 45 degrees of external rotation in active range of motion. See VA medical records for March 2013 and April 2013. In March 2014, the Veteran was administered a Shoulder DBQ. This examination noted that the Veteran is ambidextrous. The examiner also noted the Veteran's report of flareups described as increased pain but did not estimate the Veteran's range of motion during a flareup. In terms of range of motion, the examiner noted a normal initial range of motion for the left shoulder with no functional impairment after repetitive use testing, but did note that repetitive use could result in functional loss due to less movement than normal and pain. The extent of this functional impairment was not expressed in terms of degrees. Additionally, the examiner noted that the Veteran had malunion of the clavicle or scapula with tenderness on palpation of the AC joint. See Shoulder DBQ of March 2014. Other medical records show that the Veteran reported shoulder pain but do not contain additional range of motion measurements in terms of degrees specific to the left upper extremity. See generally VA medical records, to include records for April 2016, October 2016, Apri 2016. In December 2020, a medical provider noted regarding the Veteran's left upper extremity, that he had range of motion within functional limits (WFL) with pain. See VA medical records for December 2020. Specific range of motion measurements in terms of degrees were not noted for the upper left extremity. However, it is noted that the term "WFL" generally indicates that the range of motion was outside of the normal range but was found to be sufficient for activities of daily living. In July 2021, the Veteran was readministered a Shoulder DBQ. The examination report noted that the Veteran had continued to lose strength in the left arm and is barely able to pull himself up to get out of bed. Flares of his condition were reported to occur with activity, described as almost no range of motion and very decreased strength, that occurs at least weekly, lasts several hours, and are alleviated by rest and over the counter medication. The initial range of motion measurements for the left shoulder were noted as abnormal due to no strength in the left arm, with flexion limited to 30 degrees, abduction limited to 30 degrees and rotation limited to 20 degrees. Pain was noted on all range of motion movements. No additional loss of function or range of motion was noted after three repetitions. The examiner noted that repeated use over time and the Veteran's reported flares would limit the Veteran's left shoulder function due to pain and weakness, but the estimated range of motion after repeated use over time and flares were the same measurements provided as those noted for the initial range of motion. The examiner did not provide any explanation as to why the same range of motion measurements were noted for initial range of motion, after repetitive use and during flares, despite the findings that the Veteran's range of motion and function was affected after repetitive use and during flares. Additionally, the examiner noted that the Veteran had lost his range of motion and strength in the left arm/shoulder due to atrophy of disuse, weakened movement and less movement than normal- which were noted as additional factors contributing to his disability. Muscle atrophy of the left upper extremity was noted, as the left bicep was smaller than the right bicep by 5 cm. No ankylosis was noted. The examiner was unable to test for rotator cuff conditions and for other joint conditions. See Shoulder DBQ of July 2021. Based on the above and the available evidence in the claims file the Board finds that an initial disability rating in excess of 20 percent is not warranted for the Veteran's left shoulder disability, prior to December 29, 2020. As previously noted, in order to warrant a disability rating in excess of 20 percent, the medical records would need to show that the Veteran's left shoulder disability resulted in limitation of motion of the arm midway between the side and shoulder level; with shoulder level being 90 degrees. However, the evidence of record prior to the Shoulder DBQ of July 2021 does not show that the Veteran's left upper extremity range of motion, in flexion or abduction, was limited to 90 degrees (shoulder level) or less. Notably, the Shoulder DBQ of March 2014 noted a normal initial range of motion for the left upper extremity. Additionally, evidence of record contemporaneous to the effective date of the award of service connection for the left shoulder shows that the Veteran reported intermittent pain in the left shoulder with certain movements and include some range of motion measurements which do not more closely approximate a limitation of motion between the side and shoulder level. See VA records for March 2013 and April 2013. Thus, the Board finds that the preponderance of the evidence is against the finding that the Veteran's left shoulder disability resulted in limitation of motion of the arm from between the side and shoulder level and a disability rating in excess of 20 percent is not warranted prior to December 29, 2020. The Board observes that the Shoulder DBQ of March 2014 is inadequate in view of Sharp v. Shulkin as the examiner declined to estimate the functional impairment the Veteran experienced due to his flares, because the examination was not conducted during a flare. 29 Vet. App. 26 (2017). The examination report does note, regarding flares, the Veteran's report of increased pain in his left shoulder with barometric pressure changes and also notes that the Veteran had functional loss after repetitive use of his left upper extremity due to less movement than normal and pain on movement. Thus, the report suggests that the Veteran's flares and/or repetitive use impacted his range of motion. The extent of this impact, however, cannot be ascertained from the March 2014 Shoulder DBQ, as the examiner did not provide estimates of the impairment. Additionally, the Shoulder DBQ of March 2014 is inadequate in view of Correia v. McDonald because the examination does not seem to address passive and nonweight-bearing motion. 28 Vet. App. 158, 166 (2016). Nonetheless, the other evidence of record, to include medical records prior to March 2014 show that while the Veteran had at times abnormal range of motion, his range of motion was not noted to be limited to shoulder level (90 degrees) or less in flexion or abduction. See generally VA medical records, to include records for March 2013 and April 2013. Further, while the Veteran did report pain in his shoulder with certain movements, the evidence of record does not show that the Veteran reported or that his medical care providers observed his left upper extremity range of motion to be limited to shoulder level or less due to flares or after repetitive use at any time prior to the July 2021 Shoulder DBQ. Additionally, the lay statements of record pertaining to the left shoulder do not note or suggest that his condition manifested with a limitation of motion of his upper left extremity to shoulder level or less, prior to December 2020. See generally statement of October 2013 noting a left shoulder tear and statement of December 2013 regarding painful shoulder. Thus, the Board finds the preponderance of the evidence is against finding that the Veteran's left shoulder disability manifested with limitation of motion to shoulder level or less, prior to December 29, 2020 and a disability rating in excess of 20 percent for the Veteran's left shoulder disability is not warranted prior to December 29, 2020. In December 2020, a medical provider noted that the Veteran had range of motion within functional limits (WFL) in his left upper extremity with pain. In July 2021, the Veteran was administered a Shoulder DBQ that showed abnormal initial range of motion. Here, the Board finds that resolving reasonable doubt in the Veteran's favor, the range of motion measurements noted in the July 2021 Shoulder DBQ and the notations of the additional impairment the Veteran suffers regarding his left shoulder disability, to include additional limitations in his range of motion during flares or following repetitive use, more closely approximate the criteria for a disability rating of 40 percent pursuant to DC 5201. As previously noted, in order to warrant a disability rating of 40 percent, the evidence of record would need to show that the Veteran's left shoulder disability results in limitation of motion to 25 degrees from the side. Here the Shoulder DBQ of July 2021 notes initial range of motion as follows: flexion limited to 30 degrees, abduction limited to 30 degrees and rotation (external and internal) limited to 20 degrees, and that the Veteran's flares and/or repetitive use over time affect his range of motion or cause functional impairment due to pain and weakness. It is noted that the July 2021 Shoulder DBQ noted the same range of motion measurements in terms of degrees for flares or after repetitive use as those noted in the initial range of motion. Additionally, the examiner did not provide any explanation for these findings nor did he reconcile these findings with his note that flares and repetitive use cause additional functional impairment. Further, the examination report notes that other diagnostic tests for the shoulder could not be tested. While the examination report does not provide a clear explanation for the inability to test certain movements, the Board observes that the examiner did note the Veteran reported almost no range of motion during a flare and that the Veteran lost his range of motion due to atrophy of disuse, weakened movement and less movement than normal. See Shoulder DBQ of July 2021. Thus, the Board finds that resolving reasonable doubt in the Veteran's favor and in view of the observations noted in the Shoulder DBQ of July 2021 noting almost no range of motion during flares, his left shoulder disability results functional impairment that more closely approximates the disability rating criteria for a 40 percent disability rating, pursuant to DC 5201. Additionally, the Board finds that this increase in disability was ascertainable from December 29, 2020 as the Veteran was noted to have range of motion WFL, which implied that the Veteran's range of motion was abnormal at the time. Here, resolving reasonable doubt in the Veteran's favor, the Board finds that this notation supports the finding that the increase in disability was ascertainable from December 29, 2020. Swain v. McDonald, 27 Vet. App. 219, 223-24 (2015). It is noted that 40 percent is the highest possible schedular rating provided by DC 5101. Thus, a rating in excess of 40 percent is not available pursuant to DC 5101. The Board has examined the evidence of record prior to December 2020 to determine whether such evidence, to include the lay statements of record and the representative's arguments in the various appellate briefs of record, could support a finding that the Veteran's left shoulder disability manifested with symptomatology that more closely approximated the 40 percent disability rating criteria prior to December 29, 2020. However, the Board is unable to find probative evidence to support such finding. Notably, while the record does show that the Veteran's representative noted the Veteran's reports of his left shoulder disability worsening in the Appellate Briefs of February 2018 and May 2019, these reports do not provide information regarding the level of impairment the Veteran was experiencing at the time other than limitation of motion due to pain, which is consistent with the evidence of record from 2013 and forward and is consistent with a disability rating of 20 percent. In other words, while these statements do note that the Veteran's disability had worsened, the statements do not suggest that the Veteran's left shoulder disability was manifesting with limitation of motion to less than shoulder level. Additionally, the medical evidence of record contemporaneous to those statement does not show or suggest that the Veteran's left shoulder disability resulted in limitation of motion to shoulder level or less prior to December 2020. Thus, the Board is unable to find that these statements regarding a worsening of the disability, on their own, support the finding that the Veteran's left shoulder disability was manifesting with symptomatology that more closely approximated the 40 percent disability criteria, or in the alternative that the symptomatology more closely approximated the disability criteria for a disability rating in excess of 20 percent prior to December 29, 2020. In reaching this conclusion the Board has also considered the representative's argument in his Appellate Brief of September 2021 regarding how the VA examinations conducted in July 2021 failed to address the "history behind the condition" because "the examiner took no consideration as to how long his left shoulder condition has been in the state that it has been." See Appellate Brief of September 2021, page 3. This argument is interpreted by the Board as a request for a retrospective opinion regarding the severity of the Veteran's disability during the appellate period. In Chotta v. Peake, 22 Vet. App. 80, 85 (2008) the Court held that in certain circumstances the duty to assist may include development of medical evidence through a retrospective medical evaluation. The Board notes that Chotta is distinguishable from the current appeal before the Board in that in Chotta, there was no medical evidence of record covering a period of 50 years- after revising a final decision denying service connection on the basis of clear and unmistakable error. However, in the present appeal, there is evidence of record covering the appeal period before the Board in the form of VA medical records, examinations, and lay statements made contemporaneous to the period on appeal. These records and statements are found to be sufficient evidence to adjudicate the present increased rating claim and thus, the Board finds that a retrospective opinion regarding the Veteran's left shoulder disability is not warranted. The Board has also considered the application of 38 C.F.R. § 4.71a, DC 5003 for the Veteran's arthritis, which has been confirmed by x-ray evidence. However, a rating under this DC would not provide a higher benefit to the Veteran because a rating of 20 percent requires, in the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and the Veteran is already rated at 20 percent disabled prior to December 2020. 38 C.F.R. § 4.71a, DC 5003. Thus, a higher rating under these provisions is not approximated in the Veteran's disability picture. The Board has also considered whether the left shoulder disability may be rated under an alternate diagnostic code pertaining to the upper extremity. However, the evidence of record does not show that the Veteran has a humerus condition, as such diagnostic code 5202 is not for application. Additionally, the Board has considered that the Shoulder DBQ of 2014 noted malunion of the clavicle or scapula with tenderness on palpation of the AC joint. See Shoulder DBQ of March 2014. This finding suggests that diagnostic code 5203 could also apply to the Veteran's disability. Diagnostic code 5203 provides a maximum disability rating of 20 percent for impairment of the clavicle or scapula with dislocation. As the Veteran is already in receipt of a 20 percent disability rating for his left shoulder disability, pursuant to DC 5201, the Board finds that diagnostic code 5203 would not provide a more favorable disability rating for the appeal period. Finally, the Board has also considered whether the Veteran's disability could be rated pursuant to diagnostic code 5200 which provides a maximum 50 percent disability rating for ankylosis manifesting with abduction limited to 25 degrees from the side (unfavorable ankylosis) of the dominant or major extremity. Generally, ankylosis requires fixation of the joint. However, the Board finds the evidence of record does not support the finding that the Veteran's left shoulder presents with ankylosis. See July 2021 Shoulder DBQ. The Board acknowledges that the rating criteria based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Here, the evidence of record shows that the Veteran's left shoulder disability has resulted in severe impairment as shown in the Shoulder DBQ of July 2021. However, the findings noted therein do not show that the Veteran's left shoulder disability manifests with the functional equivalent of unfavorable ankylosis. In favor of this finding, the Board observes that the Shoulder DBQ of July 2021 notes the Veteran has lost his strength due to muscle atrophy of disuse but was still able to achieve flexion to 30 degrees. Thus, the Board finds that the Veteran's left shoulder disability does not more closely approximate the functional equivalent of ankylosis. Accordingly, for the reasons explained above, and after a review of the evidence of record, the Board finds that the preponderance of the evidence is against finding entitlement to an initial disability rating in excess of 20 percent for the Veteran's left shoulder disability prior to December 29, 2020. However, resolving reasonable doubt in the Veteran's favor, his left shoulder disability has manifested with symptomatology that more closely approximates the 40 percent disability rating, from December 29, 2020 and forward. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. As a general matter, the Board observes that in a NOD dated June 2014, noting disagreement with the April 2014 rating decision, the Veteran asserted that he was unemployed due to health issues. See NOD written on a VA Form 9, of June 2014. Later, in September 2014, the Veteran presented a formal claim for increased compensation based on unemployability (TDIU) which was denied in a March 2015 rating decision. In the TDIU application form of September 2014, the Veteran indicated that his service-connected left shoulder and "B/P" (hypertension) prevented him from securing or following substantially gainful occupation. Thus, entitlement to a TDIU was raised by the Veteran during the pendency of his increased rating appeals and is part and parcel of the increase rating claims pursuant to Rice. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board recognizes that the Veteran did not present a separate notice of disagreement regarding the March 2015 rating decision that denied his claim for TDIU. However, in the present case the Veteran need not have continued to appeal the total denial of a TDIU for it to remain in appellate status, as part of the increased rating claims for hypertension and a left shoulder disability. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Accordingly, the Board has added the matter of entitlement to a TDIU as a separate issue, pursuant to Rice and Payne. Notwithstanding, the Board finds the matter must be remanded as no SOC has been issued addressing the entitlement to a TDIU. Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to a SMC is remanded. As noted in the introduction above, a VA 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, was associated with the claims file in September 2021. The VA 21-2680 notes the Veteran's hypertension diagnosis and his left shoulder disability, among other disabilities and their effect on his daily living activities. This constitutes a formal claim for special monthly compensation (SMC). The Court has held that SMC is an ancillary benefit and should be addressed by the Board when raised by the claimant or reasonably raised by the record, regardless of whether a formal claim is submitted. Payne v. Wilkie, 31 Vet. App. 373 (2019). As the claims file shows a formal claim for this ancillary benefit has been presented during the pendency of the appeal for higher disability ratings, the Board has included the matter as a separate issue. However, as the RO has not adjudicated the matter in the first instance, the matter must be remanded for initial adjudication by the RO. The matters are REMANDED for the following actions: 1. After enacting the increased rating granted for the Veteran's left shoulder disability in this decision, issue a Statement of the Case (SOC) addressing entitlement to a TDIU. The SOC must be sent to the Veteran with copy to his representative. 2. Adjudicate in the first instance entitlement to an SMC. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.