Citation Nr: 21074857 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-06 478 DATE: December 16, 2021 ORDER Entitlement to a rating of 20 percent for painful motion of the left shoulder is granted. Entitlement to service connection for chronic venous insufficiency with deep vein thrombosis (DVT) is granted. REMANDED Entitlement to service connection for a cardiovascular disability is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. FINDINGS OF FACT 1. The Veteran's left shoulder disability manifest in painful motion and limitation of motion of the left shoulder. 2. Chronic venous insufficiency with deep vein thrombosis deep venous thrombosis (DVT) is due to sleeping in a recumbent position for years due to severe shoulder pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 20 percent for painful motion of the left shoulder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to service connection for chronic venous insufficiency with deep vein thrombosis deep venous thrombosis (DVT) are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1958 to August 1960 and in the United States Air Force from June 1963 to June 1965. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This matter was previously before the Board in July 2018, when it was remanded for additional development, and in September 2020, when the Board granted the Veteran a 10 percent rating for painful motion of the left shoulder (the September 2020 decision also denied a rating in excess of 20 percent disabling for dislocation of the left shoulder). The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2021 Order, granting a May 2021 Joint Motion for Partial Remand (Joint Motion), the Court vacated and remanded the portion of the September 2020 Board decision granting a 10 percent rating for remand consistent with the terms of the Joint Motion. The case has now returned to the Board for further appellate review and readjudication consistent with the terms of the Joint Motion. In April 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. 1. Entitlement to a rating of 20 percent for painful motion of the left shoulder The June 2021 Joint Motion describes that the Board granted a separate 10 percent rating under 38 C.F.R.§ 4.71a, DC 5010-5003 for traumatic arthritis of the left shoulder and noted that a higher rating was not warranted because the medical evidence did not support a finding that the Veteran has limitation of motion of the arm at shoulder level. The Joint Motion explains that the Board erred when it failed to provide adequate statement of reasons or bases for its decision to rate the Veteran's traumatic arthritis under Diagnostic Code 5010 rather than Diagnostic Code 5201. The parties to the Joint Motion note that pursuant to 38 C.F.R. § 4.71a, DC 5201, the minimum compensable rating is 20 percent. Disability ratings are determined by comparing a Veteran's symptomatology during the pertinent period on appeal with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. An exception to this rule is where the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, so 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. 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. 38 C.F.R. § 4.59, Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110 (g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Diagnostic Code 5003 for degenerative arthritis provided that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1968). Where, however, 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. Id., 38 C.F.R. § 4.59; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, a veteran is not entitled to separate compensable disability awards for both arthritis (under DC 5003) and limitation of motion (under another DC) in the same joint. Hicks v. Brown, 8 Vet. App. 417 (1995); Lichtenfels, 1 Vet. App at 488. As the affected part was the Veteran's left shoulder, and depending on the specific manifestations of the disability, various Diagnostic Codes were relevant for rating a shoulder disability, such as Diagnostic Code 5200 (scapulohumeral articulation, ankylosis of), Diagnostic Code 5201 (arm, limitation of motion of), Diagnostic Code 5202 (humerus, other impairment of), and Diagnostic Code 5203 (clavicle or scapula, impairment of). 38 C.F.R. § 4.71(a) (1968). As is relevant for this decision, prior to February 2, 2021, Diagnostic Code 5201 for limitation of motion of the arm provided that limitation of motion of the arm at the shoulder level warrants a 20 percent rating for both the major and minor joint. Limitation of motion to midway between the side and shoulder level warrants a 30 percent evaluation for the major joint and a 20 percent evaluation for the minor joint. Limitation of motion to 25 degrees from side warrants a 40 percent evaluation for the major joint and a 30 percent evaluation for the minor joint. From February 2, 2021 Diagnostic Code 5201 for limitation of motion of the arm provides that limitation of motion of the arm at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor joint. Limitation of motion to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 30 percent evaluation for the major joint and a 20 percent evaluation for the minor joint. Flexion and/or abduction limited to 25 degrees from side warrants a 40 percent evaluation for the major joint and a 30 percent evaluation for the minor joint. 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 (1968). A March 2016 MRI report shows mild glenohumeral arthritic change with spurring of the inferomedial humeral head. January 2017 VA and June 2019 private treatment records show the Veteran reported experiencing ongoing left shoulder pain. The October 2019 VA examination report shows that the Veteran reported fear of dislocation when doing extension and pulling movements. Range of motion measurements show flexion and abduction from 0 to 100 degrees, and internal and external rotation from 0 to 50 degrees. Pain was noted on flexion, abduction, external rotation, and internal rotation. The examiner stated that the pain did not cause functional loss. No additional loss of function was noted with repetitive use testing or with repeated use over time. The Veteran denied flare-ups. The examiner stated that the Veteran has a history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint with infrequent episodes of dislocation. Crank apprehension and relocation test was positive. Regarding conditions or impairments of the humerus, the examiner stated that the Veteran does not have loss of head or fibrous union of the humerus or malunion of the humerus with moderate or marked deformity. The examiner stated that the Veteran's humerus condition does not affect range of motion of the shoulder (glenohumeral) joint. The Veteran's shoulder disability is noncompensable under DC 5201 for limitation of motion. However, as was found in the September 2020 Board decision, there is sufficient evidence of painful motion and x-ray evidence of arthritis, warranting a separate rating based on noncompensable limitation of motion, to include painful motion, caused by degenerative arthritis established by x-ray under DC 5003 combined with § 4.59. The Veteran's left shoulder symptoms were manifested by noncompensable limitation of motion that was painful, such warrants a 20 percent rating for his service-connected left shoulder disability, but no higher, as painful motion is entitled to at least the minimum compensable rating for a joint under the applicable Diagnostic Code. Burton, 25 Vet. App. at 4; Sowers v. McDonald, 27 Vet. App. 472, 481-82 (2016) (noting that while there is a 10 percent rating available for the shoulder across all diagnostic codes, a 20 percent rating is the minimum compensable rating for the shoulder for limitation of motion). Thus, while a 20 percent rating is warranted, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a higher disability rating at any point during the appeal period. Specifically, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's left shoulder disability. In this regard, as discussed above, the October 2019 VA examiner documented the Veteran had flexion to 100 degrees, abduction to 100 degrees, external rotation to 50 degrees, and internal rotation to 50 degrees. These findings do not nearly approximate limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major extremity. Further, there is no evidence from February 7, 2021 to apply the revised rating criteria under DC 5201 as flexion and abduction were each in excess of 90 degrees. 2. Entitlement to service connection for DVT Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. In Bailey v. Wilkie, 2021 U.S. App. Vet. Claims LEXIS 13, 35, the United States Court of Appeals for Veterans Claims (Court) held that "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Accordingly, the claim of entitlement to an increased rating for a left shoulder disability has been expanded to include the claim of service connection for chronic venous insufficiency with deep vein thrombosis under the theory of secondary service connection and has been characterized as stated on the title page. See also Roberson v. Principi, 251 F. 3d 1378, 1384 (2001) ("VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations."). The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by his service-connected shoulder disability. Private treatment records document a November 2019 study indicating thrombus seen in the left gastric veins, appearing as total occlusion of flow, and a November 2020 study showing no DVT of the left leg. The impression was documented as lower extremity edema secondary to chronic venous insufficiency (CVI) and DVT of the left leg in 2019 secondary to sleeping in a chair. In October 2021, VA received a September 2021 letter from a physician who was the Veteran's VA provider in November 2019. The physician stated that he had the Veteran hospitalized for two days in 2019 "where a medical workup confirmed a DVT in his left calf muscle." The physician noted that "after a thorough review of his medical records, I found that [the Veteran] had been sleeping in a recumbent position in a chair for years because of severe shoulder pain." The physician noted that the "pain was so severe that it prevented him from sleeping supine in his bed" and that "[t]his has resulted in chronic venous insufficiency and lower extremity edema which has predisposed him to developing blood clots in his leg." The examiner also found with a high degree of certainty that sleeping in a chair led to the development of DVT. Accordingly, service connection for chronic venous insufficiency and DVT is granted. REMANDED 1. Entitlement to service connection for a heart disorder As noted above, in Bailey v. Wilkie, 2021 U.S. App. Vet. Claims LEXIS 13, 35, the Court recently held that "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Accordingly, the claim of entitlement to an increased rating for a left shoulder disability has been expanded to include the claim of service connection for a heart disorder and has been characterized as stated on the title page. In October 2021, VA received a September 2021 letter from a physician who was the Veteran's VA provider in November 2019. The physician stated that he had the Veteran hospitalized for two days in 2019 "where a medical workup confirmed" that the Veteran "also had signs and laboratory testing consistent with early stage heart failure." The examiner also found with a high degree of certainty that sleeping in a chair led to heart failure from lack of restful sleep and inactivity during the day. VA treatment records subsequent to 2019, including May 2021 records, reflect a diagnosis of mild valvular heart disease following various cardiac tests performed in January 2021. While there is an indication that the Veteran has "heart failure" that is related to his service-connected shoulder disability, it is unclear what heart disability is manifested by "heart failure." Accordingly, a medical examination and opinion should be obtained on remand. 2. Entitlement to service connection for a sleep disorder, to include sleep apnea As noted above, in Bailey v. Wilkie, 2021 U.S. App. Vet. Claims LEXIS 13, 35, the Court recently held that "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Accordingly, the claim of entitlement to an increased rating for a left shoulder disability has been expanded to include the claim of service connection for a sleep disorder, to include sleep apnea under the theory of secondary service connection and has been characterized as stated on the title page. In May 2020 correspondence, the Veteran reported experiencing symptoms due to his left shoulder disability that are not contemplated by DCs relating to the arm or shoulder, but which may be compensated under alternate DCs. See Morgan v. Wilkie, 31 Vet. App. 162 (2019) (holding that the VA should consider all schedular rating options and secondary service connection for uncompensated symptoms before considering extraschedular consideration). Specifically, he reported that it is impossible for him to sleep in a bed. He reported that the movement of his shoulder through the "dislocation track" triggers a subconscious defensive response, waking the Veteran so that he moves to a "safe" position. He reports that he finds himself wide awake, that the reaction will continue constantly if he is able to fall back to sleep, and that he is awakened permanently due to concerns about a new dislocation. In October 2021 correspondence, the Veteran contends that he has sleep apnea secondary to sleeping in a chair due to his shoulder condition. The Veteran's VA treatment records confirm that he has a history of obstructive sleep apnea (OSA). Because there is evidence to suggest that the Veteran has a sleep disorder related to service-connected left shoulder disability, but there is not sufficient information of record to make a determination, the Board finds that an examination is necessary. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disorders on appeal. Please ask the Veteran to provide the releases necessary for VA to secure any adequately identified private treatment records, including all private treatment records for sleep apnea and vascular disorders. 2. After the development in paragraph 1, above, is deemed to be complete, please refer the claim to an appropriate VA examination and medical opinion to determine the nature and etiology of the Veteran's heart disorder. The Veteran's claims-file must be made available to and reviewed by the examiner. Based on review of the record, the examiner is requested to provide the following opinions: (a.) Please identify any heart disability diagnosed during the period on appeal, to include valvular heart disease. (b.) For each diagnosed disorder, to include valvular heart disease, please opine as to whether it is at least as likely as not (a 50 percent or higher degree of probability) related to the Veteran's service-connected shoulder disability. Please address the September 2021 medical opinion (received in November 2021) where a physician stated that a November 2019 "medical workup confirmed" that the Veteran "also had signs and laboratory testing consistent with early stage heart failure" and found with a high degree of certainty that sleeping in a chair (due to shoulder pain) led to heart failure from lack of restful sleep and inactivity during the day. (c.) For each diagnosed heart disorder, please opine as to whether it is at least as likely as not (a 50 percent or higher degree of probability) aggravated by the Veteran's shoulder disability. The examiner(s) must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as appropriate. The examiner(s) should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences. If the examiner(s) cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the development in paragraph 1, above, is deemed to be complete, please refer the claim to an appropriate VA examination and medical opinion to determine the nature and etiology of the Veteran's sleep disorder. The Veteran's claims-file must be made available to and reviewed by the examiner. Based on review of the record, the examiner is requested to provide the following opinions: (a.) Please identify any sleep disorder diagnosed during the period on appeal, to include OSA. (b.) For each diagnosed disorder, to include OSA, please opine as to whether it is at least as likely as not (a 50 percent or higher degree of probability) related to the Veteran's shoulder disability. Please address the Veteran's report that the movement of his shoulder through the "dislocation track" triggers a subconscious defensive response, waking the Veteran so that he moves to a "safe" position. He reports that he finds himself wide awake, that the reaction will continue constantly if he is able to fall back to sleep, and that he is awakened permanently due to concerns about a new dislocation. (c.) For each diagnosed sleep disorder, please opine as to whether it is at least as likely as not (a 50 percent or higher degree of probability) aggravated by the Veteran's shoulder disability. The examiner(s) must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as appropriate. The examiner(s) should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences. If the examiner(s) cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O. Halpern 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.