Citation Nr: 21074538 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-36 486 DATE: December 15, 2021 ORDER An increased 30 percent rating for a left shoulder disability is granted. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. Entitlement to service connection for depression secondary to the service-connected left shoulder disability. FINDING OF FACT During the appeal period, the Veteran's left (dominant) shoulder disability was manifested by recurrent dislocation and more nearly approximated limitation of arm movement to halfway between the Veteran's side and shoulder level, or symptoms of similar severity during flare-ups. CONCLUSION OF LAW The criteria for an increased disability rating of 30 percent for a left shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a Diagnostic Codes 5201, 5202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1976 to September 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In February 2021, the Veteran testified before the Board, which then remanded the appeal in May 2021 for additional development. Increased Rating for a Left Shoulder Disability The Veteran's left shoulder disability is currently rated as 20 percent disabling throughout the period on appeal under Diagnostic Code (DC) 5201. 38 C.F.R. § 4.71a. Under DC 5201, a higher 30 percent rating for the Veteran's dominant left side is available for limitation of arm motion to midway between the side and shoulder level (or flexion and/or abduction limited to 45 degrees). A 40 percent rating is also available for flexion and/or abduction limited to 25 degrees from the side. Also relevant here is DC 5202, which provides for a 30 percent rating for impairment of the humerus on the dominant side manifested by recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements. 38 C.F.R. § 4.71a, DC 5202. Even higher ratings are available under DC 5202 for other impairment of the humerus involving fibrous union, nonunion, and loss of head (flail shoulder). Finally, a rating in excess of 20 percent for a shoulder disability of the dominant side is also available for ankylosis of the scapulohumeral articulation, including a 30 percent rating for favorable ankylosis with abduction to 60 degrees (able to reach mouth and head), and a 40 percent rating for intermediate ankylosis between favorable and unfavorable. 38 C.F.R. § 4.71a, DC 5200. Here, there is no evidence of ankylosis or objective evidence of limitation of flexion or abduction to 25 degrees from the side. See VA Examinations dated March 2012, November 2015, and May 2021. However, there is evidence of significant limitation of motion, muscle atrophy, and recurrent dislocations of the left shoulder. See February 2021 Board Hearing Transcript and May 2021 VA Examination Report. In this regard, the Veteran testified in February 2021 regarding frequent dislocations, flare-ups, and functional impairment associated with his left shoulder disability. Specifically, he described his left shoulder "popping out of socket" with certain movements, including while he slept. He also testified that he experienced flare-ups at least once a week since 2011 and that, at times, he was unable to raise his left arm higher than halfway between his side and shoulder. He also stated that he had to pay people to do things that he had once been able to do himself, such as shovel snow. During a May 2021 VA examination, the Veteran again reported recurrent left shoulder dislocations, including an episode just two weeks prior to the examination. He stated that he did not seek medical treatment but rather self-reduced the dislocation. On examination, the examiner found objective evidence of instability, decreased muscle strength, weakened movement, atrophy of the left biceps, as well as left shoulder motion limited to 60 degrees of flexion, abduction, and internal rotation, and 30 degrees of external rotation. And, although dislocation was not present on x-rays at the time of the May 2021 examination, the Board points out that February 2017 VA imaging of the left shoulder showed dislocation of the left humeral head. The examiner noted that the Veteran was impaired in his ability to perform his daily activities of living such as bathing, cleaning himself after using the restroom, writing, eating, and driving with his dominant left hand "due to the significant limited ROM to his left shoulder" and history of chronic recurrent left shoulder subluxation. The Veteran is competent to report his own symptoms, and the Board finds him to be credible. Moreover, although the May 2021 VA examiner noted on the report that the examination was being conducted during a flare-up and, even then, flexion and abduction were limited to no less than 60 degrees, there is nothing to support that the "flare-up" at the time of the examination was of the same severity as flare-ups reported by the Veteran involving pain rated as "10+" on a 1 to 10 scale that "can be almost unbearable." See February 2021 Hearing Transcript; May 2021 VA Examination Report. Thus, the Board resolves any reasonable doubt in the Veteran's favor and finds that the Veteran did experience recurrent dislocations and flare-ups involving more severe limitation of motion throughout the claim period. See 38 C.F.R. § 3.102. The Board finds that, when considering in combination the evidence of dislocations, functional impairment, flare-ups, atrophy, limitation of motion, and the Veteran's reported inability to lift his left arm more than halfway between his side and shoulder, the Veteran's overall left shoulder disability more nearly approximates the criterion for a rating of 30 percent based on recurrent dislocations with guarding throughout the entire period on appeal. Therefore, an increased rating of 30 percent is warranted. However, because, as already noted, there is no evidence of any ankylosis, limitation of motion approximating ankylosis, limitation of flexion or abduction more nearly approximating 25 degrees, or other certain impairment of the humerus, a rating in excess of 30 percent is not warranted. See 38 C.F.R. § 4.71a, DCs 5200, 5201, 5202. REASONS FOR REMAND The issue of entitlement to a TDIU on an extraschedular basis is remanded. The Board finds that the issue of entitlement to a TDIU on an extraschedular basis requires remand in order to adjudicate a pending intertwined issue. In this regard, VA will adjudicate as part of a claim entitlement to any ancillary benefits that arise as a result of the adjudication decision, including entitlement to any additional benefits for complications of the claimed condition. 38 C.F.R. § 3.155(d)(2); Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) (holding that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim). Significantly, the claimant need not assert entitlement to such ancillary benefits at the time the claim is filed. Id.; see also Grimes v. McDonough, 34 Vet. App. 84 (2021) (holding 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). Here, over the course of the development of his increased rating claim, the Veteran asserted that he experienced depression as a result of his left shoulder disability. See, e.g., December 2020 and June 2021 VA Treatment Notes. VA is obligated to provide an examination when there is competent medical evidence of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record shows that the Veteran has been treated for depression and diagnosed with Major Depressive Disorder, Single Episode Unspecified. See July 2020 VA Treatment Note. As it is unclear to the Board whether the Veteran's depression is related to his service-connected left shoulder disability, and thus whether additional compensation may be warranted, remand is necessary to obtain an opinion addressing the nature and etiology of the Veteran's depressive disorder, and to ascertain the severity of any such disorder. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician to determine whether the Veteran experiences depression or another psychiatric disorder as a result of his left shoulder disability. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his medical history, the clinician should provide an opinion regarding the following: a) Diagnose all psychiatric disorders. b) For each diagnosis, please state whether it is at least as likely as not (50 percent probability or greater) that the disorder was caused by the Veteran's service-connected left shoulder disability. Please explain why or why not. c) If not caused by the service-connected left shoulder disability, is it at least as likely as not that the Veteran's psychiatric disorder was worsened beyond its normal progression by the service-connected left shoulder disability. Please explain why or why not. d) If the examiner finds that the Veteran's underlying psychiatric disorder was worsened beyond normal progression (aggravated) by the service-connected left shoulder disability, please describe the degree of aggravation attributable to the left shoulder disability. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ 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 AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.] S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.