Citation Nr: 21076913 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 09-05 708 DATE: December 28, 2021 ORDER Entitlement to service connection for right knee disability including arthritis is denied. Entitlement to service connection for left knee disability including arthritis is denied. Entitlement to initial disability ratings for right shoulder disability higher than 10 percent from August 1, 2007, through May 22, 2016, higher than 20 percent from May 23, 2016, through February 10, 2020, and higher than 30 percent from May 1, 2020, through November 9, 2020, is denied. REMANDED Entitlement to a disability rating higher than 30 percent for right shoulder disability, from January 1, 2021, is remanded. FINDINGS OF FACT 1. The Veteran's right knee arthritis was not incurred during a period of active service, or within 12 months of his completion of active service; any current arthritis of the right knee is unrelated to service. 2. The Veteran's left knee arthritis was not incurred during a period of active service, or within 12 months of his completion of active service; any current arthritis of the left knee is unrelated to service. 3. The Veteran's right shoulder disability did not produce functional impairment equivalent to limitation of motion at shoulder level from August 1, 2007, through May 22, 2016, did not produce functional impairment equivalent to limitation of motion midway between side and shoulder level from May 23, 2016, through February 10, 2020, and did not produce functional impairment equivalent to limitation of motion to 25 degrees from his side from May 1, 2020, through November 9, 2020. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability including arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for left knee disability including arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for disability ratings for a right shoulder disability higher than 10 percent from August 1, 2007, through May 22, 2016, higher than 20 percent from May 23, 2016, through February 10, 2020, and higher than 30 percent from May 1, 2020, through November 9, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to July 1979, January 1981 to July 1993, and January 2004 to May 2004. He also had reserve service. In May 2006 the Veteran sought service connection for right shoulder disability. In March 2007 he sought service connection for bilateral knee problems. In a June 2007 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection, effective May 31, 2006, for right shoulder degenerative joint disease (DJD). The RO assigned a disability rating of 10 percent. In June 2007 the Veteran sought a temporary 100 percent rating for right shoulder disability following right shoulder surgery performed in January 2007. In an August 2007 rating decision, the RO denied service connection for right knee arthritis and left knee arthritis. The RO granted a temporary 100 percent rating for the shoulder disability from January 5, 2007, through February 28, 2007, and assigned a 10 percent rating from March 1, 2007. The Veteran appealed the service connection denials to the Board of Veterans' Appeals (Board). In September 2007 the Veteran sought an extension of the temporary 100 percent rating for the shoulder disability. In a January 2008 rating decision, the RO denied an extension of the temporary 100 percent rating for the shoulder disability. The RO continued the 10 percent rating for that disability. The Veteran appealed those decisions to the Board. In a December 2008 rating decision, the RO granted extension of the temporary 100 percent rating for the shoulder disability through July 31, 2007. The RO assigned a 10 percent rating from August 1, 2007. In April 2011 and July 2014, the Board remanded the knee disability service connection issues and the shoulder disability rating issues to the RO for additional action. In an October 2020 rating decision, the RO increased the rating for residuals of right shoulder rotator cuff repair, to include DJD, to 20 percent effective May 23, 2016. The RO assigned a temporary 100 percent rating for the right shoulder disability from February 11, 2020, through April 30, 2020. The RO assigned a 30 percent rating for the right shoulder disability from May 1, 2020. In January 2021 the Veteran sought a temporary total rating for right shoulder disability following a November 10, 2020, surgery. In March 2021, the Board remanded the knee disability service connection issues and the shoulder disability rating issues to the RO for additional action. In a June 2021 rating decision, the RO granted a temporary 100 percent rating for the Veteran's right shoulder disability from November 10, 2020, through December 31, 2020. The RO assigned a 30 percent rating from January 1, 2021. The RO proposed to reduce the rating for the shoulder disability to 20 percent. In July 2021 the Veteran requested a virtual hearing on the proposed reduction for the rating for the right shoulder disability. The right shoulder rating issues the Board is addressing presently include the appeals for ratings higher than 10 percent from August 1, 2007, through May 22, 2016, higher than 20 percent from May 23, 2016, through February 10, 2020, and higher than 30 percent from May 1, 2020, through November 9, 2020. The issue of the rating from January 1, 2021, is intertwined with the proposed rating reduction. The Board is remanding the issue of the rating for that time period. Evidence associated with the claims file after the July 2021 Supplemental Statement of the Case includes VA treatment records. However, review of this new evidence indicates that it is not relevant to the Veteran's knee claims and pertains to the staged rating being remanded and will be reviewed upon remand. Thus, a waiver of AOJ review is not required. SERVICE CONNECTION Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Service connection for a right knee disability 2. Service connection for a left knee disability The Veteran contends that injuries and physical demands during his active service periods caused current problems, including arthritis, in both of his knees. In service the Veteran had treatment in November 1976 for a left knee injury. He reported that the day before he slipped and fell and twisted the knee. He related that the knee had pain, swelling, and restricted movement. A clinician found tenderness and some edema. The clinician's assessment was strain. Treatment was ace wrap, whirlpool baths, and raising the leg in the evening. On separation examination in June 1979, the examiner marked normal for the condition of the Veteran's lower extremities. In service the Veteran had treatment in October 1981 for left knee pain. He reported twisting the knee while playing with his dog the day before. The clinician found no swelling and no possible fracture. The clinician's assessment was muscle strain. Treatment was use of heat for five days. In August 1982 the Veteran was hit by a car while he was walking. He had treatment for right ankle injury. X-rays showed a fracture of his right fibula. On follow-up in September 1982 a clinician prescribed two weeks of light duty. Years later the Veteran sought and VA established service connection for residuals of a fracture of the right fibula. The Veteran had treatment in April 1989 for right knee pain after twisting the knee playing volleyball the day before. The clinician found no swelling or effusion in either knee. The right knee had increased pain with full flexion. The clinician assessed right knee muscle strain. The clinician prescribed ice, a knee brace, a cane, and refraining from physical training for five days. In an April 1993 medical history, the Veteran marked yes for swollen and painful joints, for trick or locked knee, and for broken bones. He reported right shoulder separation five years earlier, a right lower leg fracture in 1982, and occasional pain and occasional giving out of his right knee. On examination in May 1993, the examiner marked normal for the condition of the Veteran's lower extremities. On a reserve service medical history in April 2002, the Veteran marked yes for history of broken bones and no for history of trick or locked knee. On examination, the examiner marked normal for the condition of the Veteran's lower extremities. In a January 2004 medical history for service, the Veteran reported right leg fracture in 1982. He marked no for history of knee trouble. On reserve service certificates of physical condition in August 2004 and February 2005, the Veteran marked no for physical defects that might restrict his performance. In his March 2007 claim for service connection for bilateral knee problems, the Veteran stated that he injured his knees during service and still had trouble with his knees. On VA examination in April 2007, the Veteran reported that in service he had a left knee twist injury with strain in the late 1970s and a right knee sports injury in the late 1980s. He stated that presently he had occasional pain in both knees, worse in the left, with lengthy or strenuous use. He indicated that his knee symptoms did not limit his walking or his daily or work activities. He reported that he worked as a carpenter. He related with climbing ladders and other tasks he had some knee pain but no impairment. The examiner found that both knees appeared normal, without swelling. Both knees were stable and had motion from 0 to 140 degrees without pain. Knee x-rays showed mild bilateral osteoarthritic changes. In a July 2007 addendum, the examiner expressed the opinion that arthritis in the Veteran's knees was less likely than not related to his knee injuries in service. The examiner explained that the injuries in service were years earlier, the current arthritis was mild, and the arthritis was more likely related to recent occupational activity as a carpenter. In VA treatment in August 2007, the Veteran sought follow-up on an accidental nail gun wound in his upper right thigh three weeks earlier. The physician found that the wound was healed and removed sutures. Imaging of the right femur in September 2007 showed possible injury to the femur by the nail or possible osteomyelitis. In September 2007 the Veteran wrote that his knees were affected by twelve years of shipboard service with climbing ladders, working on ship decks, running for physical training, climbing to check shipping containers, and by being hit by a car during service. He stated that his post service work as a carpenter was for a short time. In November 2007 the Veteran's wife wrote that when she met him in 1980 his knees had no limitations. She stated that demands on his body during service affected him and that he now had chronic knee pain. In VA treatment in November 2007, a physician found that the Veteran's right thigh wound was healed. On imaging in December 2007, the right knee joint was normal. Lesions in the distal femoral shaft appeared benign in nature. In a January 2008 statement, the Veteran asserted that his knee problems stemmed from his Navy service for most of his adult life and not from the relatively short time after service when he worked as a carpenter. In a VA primary care annual evaluation in March 2008, the Veteran reported pain in his right shoulder, right thigh, both knees, and both ankles. On VA examination in August 2008, the Veteran reported right and left knee injuries in service and a motor vehicle accident (MVA) in service. He related ongoing and worsening knee problems since then. He reported constant pain, inability to climb, kneel, or squat, and decreased endurance in standing and walking. The examiner found in both knees evidence of pain at the extremes of extension and flexion. The examiner noted x-ray evidence of osteoarthritis in both knees. The examiner reviewed the Veteran's claims file. The examiner noted the left knee injury in 1981 and the right knee injury in 1989. The examiner noted that in treatment for the 1982 MVA there was no complaint of pain in either knee. The examiner expressed the opinion that the present mild osteoarthritis in the Veteran's knees was much less likely than not related to the incidents in 1981, 1982, or 1989. The examiner opined that injury in the 1980s significant enough to produce continuous pain for more than twenty years afterward would be expected to produce significant osteoarthritis, not the mild spurring shown on 2007 x-rays. In VA treatment in November 2008, the Veteran reported that knee pain was worsening and affecting his walks. X-rays of both knees in November 2008 showed minimal osteoarthritic changes, unchanged from April 2007 x-rays. In a February 2009 substantive appeal, the Veteran noted that medical records showed knee problems during and after his service. VA treatment records from 2010 to 2019 reflect the Veteran's reports of ongoing bilateral knee pain. On VA examination in July 2021, the Veteran reported that his knee pain began with the MVA in service, with a fracture of his right leg and ankle. He also noted that in service he twisted his right knee playing volleyball. He stated that in service in 1991 he fell off a ladder and had a sick call visit. He reported present bilateral knee pain with occasional weakness and intermittent giving out. He related his current knee problems to service duties climbing ladders, running during physical training in service, and an MVA in service. The examiner reviewed the Veteran's claims file. The examiner found that April 2007 examination showed osteoarthritis in both of the Veteran's knees. The examiner expressed the opinion that the Veteran's bilateral knee arthritis was less likely than not incurred in service or caused by events in service. The examiner explained that the Veteran's arthritis found in 2007 was less likely than not attributable to his knee injuries in service, including those in 1976 and 1981, and was less likely than not attributable to his ladder climbing and running in service. The examiner found that the absence of knee complaints at treatment following the 1982 MVA made connection of that accident to the current knee arthritis less likely than not. The examiner opined that the evidence of record indicated that the current bilateral knee arthritis was most likely due to age-related degenerative changes. The evidence of record establishes that the Veteran has osteoarthritis in both of his knees. However, that arthritis did not manifest to a compensable degree within a year following any of his periods of active service, and continuity of symptomatology since the Veteran's completion of active service is not established. Accordingly, presumptive service connection for a chronic disease does not apply. 38 C.F.R. § 3.307, 3.30 The Veteran's service treatment records do not reflect any right knee injuries during his 1975 to 1979 service period, and an examiner found his right lower extremity to be in normal condition at the end of that service period. During the Veteran's 1981 to 1993 service period, the MVA in 1982 caused fracture of his fibula. The service-connected fracture was near his ankle, and he did not report right knee pain then. In 1989 he had a twisting sports injury of his right knee. The treating clinician called for treatment of the strain for five days. There is no indication that further treatment became necessary. Around separation in 1993, the Veteran reported occasional pain and giving out of his right knee and an examiner found that the right lower extremity was in normal condition. The evidence from the 1981 to 1993 service period weighs against the right knee having continuous symptoms or significantly frequent or serious symptoms through the end of that period. Reports and findings of normal condition of the right knee in 2002 and 2004 are further evidence against continuity between the 1989 right knee injury and the right knee pain complaints and arthritis findings in 2007. In the Veteran's 1975 to 1979 service period, he had in November 1976 a left knee twisting injury diagnosed as strain. Treatment records do not reflect further treatment visits, and an examiner found his left knee to be in normal condition at separation in 1979. During the Veteran's 1981 to 1993 service period, in October 1981 he had a twisting injury diagnosed as strain. He did not report left knee symptoms at the time of the 1982 MVA. In reporting occasional knee symptoms in a 1993 history he specified the right knee only. The May 1993 examiner marked normal for the condition of his left lower extremity. The greater weight of the evidence is against continuous or recurrent symptoms in the left knee at separation from the 1981 to 1993 service period. Reports and findings of normal condition of the left knee in 2002 and 2004 are further evidence against continuity between the 1981 left knee injury and the left knee pain complaints and arthritis findings in 2007. The preponderance of the evidence is against the manifestation of arthritis or other chronic disorder in either of the Veteran's knees at the end of any of his service periods. Over the years between the Veteran's 1975 entry to his first period of service and the diagnosis of bilateral knee arthritis in 2007, he was in active service for approximately seventeen years and in civilian life for approximately sixteen years. Examiners' opinions against attributing his bilateral knee arthritis to service are highly probative evidence against the Veteran's claim. The examiners addressed the Veteran's lay contentions and considered his in-service treatment records. Their explanation as to why any injury sustained during service would not result in arthritis is persuasive, and their opinions have greater probative weight than the Veteran's lay assertions. The Board acknowledges the Veteran's sincere belief that his knee disabilities are related to his active service. Although lay persons are competent to provide opinions on some medical issues, determining the etiology of a complex condition falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011). While the Veteran is competent to report his symptoms, any opinion regarding the etiology of his knee disabilities requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-7 (2007). Accordingly, the Veteran's assertion that his knee disabilities are related to his military service is not probative. In summary, the Board finds that the preponderance of the evidence is against the claim for service connection for the Veteran's right and left knee disabilities. The benefit of the doubt rule therefore does not apply, and the Board denies service connection for these disabilities. 3. Disability ratings for right shoulder disability before January 1, 2021 The Board is presently addressing the Veteran's appeal for ratings for his right shoulder disability higher than 10 percent from August 1, 2007, through May 22, 2016, higher than 20 percent from May 23, 2016, through February 10, 2020, and higher than 30 percent from May 1, 2020, through November 9, 2020. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. 38C.F.R. § 4.59; see Correia v McDonald, 28 Vet. App. 158 (2016). The Court has noted that "A veteran may... be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that his or her disability causes additional functional lossi.e., 'the inability...to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance'including as due to pain." Sharp v. Shulkin, 29 Vet. App. 26, 31-32 (2017); 38 C.F.R. § 4.40. The Court added, "A higher evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Sharp at 32; 38 C.F.R. § 4.45. The Veteran is right handed. The RO presently describes the Veteran's right shoulder disability as unspecified cartilage disorder, subdeltoid bursitis, tendinosis, and residuals of rotator cuff repair, including DJD. The RO has evaluated the disability under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under that code, limitation of motion of the major arm at the shoulder is rated at 40 percent if limited to 25 degrees from the side, 30 percent if limited to midway between the side and shoulder level, and 20 percent if limited to shoulder level. Diagnostic Code 5201 "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, 1358 (Fed. Cir. 2013). Arthritis is rated based on the limitation of motion of the affected joint. If the limitation of motion is not compensable under the applicable diagnostic code, a 10 percent rating is assigned for each major joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. In May 2006 the Veteran attended a VA physical therapy visit for right shoulder pain. He stated that constant right shoulder pain interrupted his sleep and caused him to ease off in his work as a carpenter. On testing the shoulder had full strength in all movements. In a VA orthopedic consultation in September 2006, the orthopedist found that, at the halfway salute position, the right shoulder was extremely weak and painful when stressed. The shoulder had weak external rotation and weaker abduction. He had rotator cuff insufficiency. The orthopedist scheduled right shoulder surgery in January 2007. The January 2007 right shoulder surgery included arthroscopy, open rotator cuff repair, and acromioplasty. Surgery was followed by physical therapy. On VA examination in April 2007, the Veteran was still in physical therapy and was not back at work. In a June 2007 statement, the Veteran reported that he still had not been released to return to work. In a July 2007 telephone call to a VA clinic he related ongoing shoulder pain. In a VA orthopedic visit in September 2007, the Veteran reported constant pain that was worse with movement. The physician found positive impingement signs. There was pain with passive range of motion. The physician counseled the Veteran that full recovery from the surgery might not be evident until two years after the surgery. The physician planned for follow-up in three months and released the Veteran back to work. In a November 2007 statement, the Veteran's wife wrote that a surgeon stated that the Veteran's shoulder would always have pain. In VA orthopedic treatment in December 2007, the Veteran's right shoulder had pain with passive range of motion. Muscle strength was 4++/5. The physician stated that the Veteran could work as tolerated but that he should be cautious with overhead activity. In July 2008 the Veteran reported that his right shoulder pain had decreased slightly. He stated that the shoulder was still painful overall, however, and was more painful at night, after activity, and with overhead movement. The physician noted evidence of mild pain with passive range of motion from 0 to 110 degrees. In a February 2009 statement, the Veteran asserted that the range of motion of his right shoulder was reduced with repetitive use. In a VA rheumatology consultation in November 2010, the Veteran reported pain in multiple joints and muscles. The physician found full ranges of motion in both of his shoulders. In VA orthopedic treatment in March 2012, the clinician noted that the Veteran's right shoulder had a little pain with motion. The shoulder had normal ranges of motion and full strength in the rotator cuff. On VA examination in November 2015, the Veteran reported that his right shoulder had sharp pain, with flare-ups of worse pain with certain movements and positions and during sleep. The shoulder had motion to 150 degrees of flexion, 150 degrees of abduction, 90 degrees of external rotation, and 30 degrees of internal rotation. There was pain on flexion, abduction, and internal rotation. The pain did not cause functional loss. After three repetitions the ranges of motion remained the same. The shoulder had 5/5 strength in forward flexion and abduction. The examiner stated that the right shoulder disability did not impact the Veteran's ability to perform occupational tasks. In VA treatment in November 2016, the Veteran reported right shoulder pain. In May 2017 he related shooting pain in his right shoulder. In treatment the Veteran reported that he fell on September 12, 2019, and experienced pain in areas including his right shoulder. In VA treatment in September 2019, he related increased right shoulder pain since that fall. A clinician noted decreased range of motion of that shoulder. An orthopedist found acute exacerbation of his right shoulder arthritis. In private treatment in October 2019, the Veteran reported constant, moderate to severe pain in his right shoulder that worsened with activity. He related weakness and decreased mobility of the shoulder. The clinician noted pain and a limited range of motion. There was pain with active motion. In November 2019, imaging showed tear of the supraspinatus tendon. In February 2020 the Veteran had right shoulder surgery including rotator cuff repair and tendon repair. The surgery was followed by private physical therapy. In physical therapy in April 2020, the Veteran reported that his shoulder still felt very weak and unable to do moderate or heavy lifting. He reported having most of his mobility back, but having moderate pain depending on activity level. He related difficulty lifting, carrying, and dressing. The shoulder had abduction to 154 degrees, external rotation to 65 degrees, flexion to 136 degrees, and internal rotation to 22 degrees. Muscle strength was 3+/5 in the abductors, 3+/5 in the external rotators, 4-/5 in the flexors, and 4-/5 in the internal rotators. The clinician stated that poor strength in the shoulder negatively affected the Veteran's function. In VA treatment in May 2020, the Veteran reported clicking in his right shoulder area. In June 2020 the private surgeon noted the Veteran's ongoing right shoulder pain and discussed additional surgery. On VA examination in October 2020, the Veteran reported daily flare-ups of severe right shoulder pain that lasted several hours. He stated that it was painful to pull, push, or grip objects. Motion of the right shoulder was limited to 90 degrees of flexion, 90 degrees of abduction, 60 degrees of external rotation, and to degrees of internal rotation. In each direction there was pain on motion that caused functional loss. There was pain with and without weightbearing and with passive and active motion. After three repetitions the ranges of motion remained the same. The examiner concluded that, with flare-ups, and with repeated use over a period of time, right shoulder pain would limit flexion to 45 degrees, abduction to 45 degrees, external rotation to 15 degrees, and internal rotation to 15 degrees. Muscle strength was 4/5 in forward flexion and abduction. The right shoulder was not in ankylosis. Test results were consistent with a rotator cuff condition. The Board acknowledges that only the October 2020 examination report complies with the Court's holding in both Correia and Sharp. However, the November 2015 examination report shows the Veteran had far greater range of flexion and abduction. Thus, the Board finds the October 2020 examination report is probative with respect to the Veteran's range of motion during flare-ups and on repeated use throughout the appeal period. In November 2020 the Veteran underwent right shoulder surgery with rotator cuff repair, removal of hardware, and open distal clavicle resection. The Veteran did not appeal the rating assigned from May 31, 2006, the effective date of service connection for the disability until the January 2007 surgery. His appeal initiated in January 2008 and subsequently continued addresses all of the ratings lower than 100 percent from August 1, 2007, forward. From August 1, 2007, through May 22, 2016, the Veteran's right shoulder disability sometimes was manifested by limitation of motion, but motion was not limited to the shoulder level. He had pain in the shoulder, including pain with passive motion, and weakness in the shoulder. The evidence does not tend to indicate, however, that the pain and weakness produced functional impairment equivalent to limitation of motion to the shoulder level. There is no evidence of ankylosis, impairment of the humerus, clavicle, and/or scapula with malunion/nonunion. The disability picture during that period did not meet or approach the criteria for a rating higher than 10 percent. The Board denies a rating higher than 10 percent for that period. On February 11, 2020, the Veteran had right shoulder surgery and a temporary 100 percent rating took effect. From May 23, 2016, through February 10, 2020, the Veteran's right shoulder disability was manifested by limitation of motion, but the evidence does not indicate that motion was limited to midway between side and shoulder level. After the Veteran fell in September 2019 the shoulder produced increased pain and had decreased motion, but the evidence did not relate limitation consistent with a rating higher than 20 percent or present a picture of functional limitation consistent with such limitation. There is no evidence of ankylosis, impairment of the humerus, clavicle, and/or scapula with malunion/nonunion. The Board denies a rating higher than 20 percent for that period. On November 10, 2020, the Veteran had another right shoulder surgery and another temporary 100 percent rating took effect. From May 1, 2020, through November 9, 2020, the Veteran's right shoulder disability was manifested by limitation of motion, pain, clicking, and weakness, with greater functional impairment on flare-ups and with repeated use over time. Even with flare-ups and repeated use, functional impairment was not equivalent to limitation of motion to 25 degrees from his side. There is no evidence of ankylosis, impairment of the humerus, clavicle, and/or scapula with malunion/nonunion. The Board denies a rating higher than 30 percent for that period. REASONS FOR REMAND 1. Disability rating for right shoulder disability, from January 1, 2021 As noted above, the Veteran requested a pre-determination hearing for the proposed reduction of his right shoulder disability rating from 30 percent to 20 percent from January 1, 2021. The hearing is pending and the AOJ has not yet issued a final rating on the proposed reduction. The Board finds that the issues are intertwined and is remanding this issue for the RO to provide the requested hearing. As such, it would be premature for the Board to decide the claim for a rating higher than 30 percent from January 1, 2021. The matters are REMANDED for the following action: 1. Schedule the Veteran for a pre-determination hearing on the proposed reduction from January 1, 2021, for his right shoulder disability. 2. Then, readjudicate the increased rating claim. If the claim remains denied, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Then return the case to the Board for appellate review, if otherwise in order. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.