Citation Nr: 21006190 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 08-14 131 DATE: February 3, 2021 REMANDED Entitlement to service connection for a right shoulder disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to an increased rating for diabetic neuropathy in the right upper extremity, currently rated as 10 percent prior to March 28, 2012, and 20 percent thereafter is remanded. Entitlement to an evaluation in excess of 20 percent for type II diabetes mellitus with cataracts is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1968 to February 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). In that rating decision, the RO denied entitlement to service connection for a right shoulder disorder as well as claims for higher ratings for diabetes mellitus with cataracts, diabetic neuropathy in the right upper extremity, and erectile dysfunction. In June 2011, the Veteran testified before the undersigned Veterans Law Judge at Travel Board hearing held at the Montgomery RO. The hearing transcript is associated with the claims folder. In December 2011, the Board added the TDIU issue to the current appeal under Rice v. Shinseki, App. 447 (2009), and then remanded the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. In an August 2020 rating decision, the RO granted TDIU effective December 7, 2005. The current claims on appeal were filed in July 2006. As such, the TDIU award covers the entire appeal period and is no longer on appeal. Upon remand, the RO issued another rating decision in July 2015, which increased the disability rating for the diabetic neuropathy in the right upper extremity to 20 percent, retroactively effective from March 28, 2012. This decision created staged ratings, and the title page has been adjusted accordingly. The Veteran continued to appeal, requesting even higher evaluations. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). In February 2016, the Board remanded the appeal to the RO for further development. Entitlement to service connection for a right shoulder disorder, to include as secondary to service-connected disabilities is remanded. The Veteran contends that he has a right shoulder disorder, claimed as degenerative disc disease and/or impingement syndrome, which is caused or aggravated by his service-connected disabilities, to include his diabetes mellitus type II, right upper extremity neuropathy and his history of a cerebrovascular accident (CVA). A March 2012 VA examiner diagnosed the Veteran with degenerative joint disease and opined that the “degeneration is unrelated to his service-connected conditions.” Additionally, in an August 2016 VA examination, the examiner found that the Veteran’s right shoulder degenerative joint disease with impingement syndrome was less likely than not caused by a disease or injury that occurred during the Veteran’s service. In so finding, the examiner noted that he was unable to locate any documentation of right shoulder complaints, diagnosis, or examinations related to the right shoulder. He also found that there was no evidence of chronicity or progression of right shoulder complaints and/or findings between the Veteran’s service and first documentation of shoulder pain in 2010. With respect to secondary service connection, the examiner likewise opined that it was less likely than not that the Veteran’s right shoulder disability was caused or aggravated by his service-connected conditions to include his service-connected CVA. Rather, the examiner attributed the Veteran’s right shoulder disabilities to his post-service employment and the aging process. Specifically, the examiner opined that Review of records show first documented complaint about right shoulder was 2010, he reported to health care provider 5 years history of right shoulder pain. X-ray taken at that time AC joint OA. Veteran reported after leaving active military service in 1972, he was employed with paper mill in Mobile, Al., up to his retirement. Veteran reported when first began employment at paper mill, he was a paper machine operator, required with another person, to lift paper rolls weighing 300 pounds as part of his job. Veteran reported over the years, as he was promoted, became supervisor which did not require heavy manual labor. Veteran findings of OA of right AC joint in 2010 is consistent with natural progression of aging and repetitive motion of shoulder with manual labor. He reported full use of his right upper extremity when he began employment at the paper mill, and continued up to his retirement. It is less likely than not, Veteran’s OA right shoulder is due to or caused by a CVA in 1970’s, which he fully recovered without any limitations, and is more likely than not due to natural progression of aging and many years of repetitive motions with employment. Since that opinion was obtained, several precedential opinions have clarified that the concept of secondary service connection does not require a “permanent worsening” of disability but rather whether a service-connected disability results in any additional functional impairment associated with the nonservice-connected disability. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019); Saunders v. Wilkie, 886 F.3d. 1356, 1363 (Fed. Cir. 2018); Garner v. Tran, U.S. App. Vet. Claims LEXIS 81 (Jan. 26, 2021). This issue is remanded for opinion which complies with these court precedential opinions. 2. Entitlement to an increased rating for diabetic neuropathy in the right upper extremity, currently rated as 10 percent prior to March 28, 2012, and 20 percent thereafter is remanded. 3. Entitlement to an increased rating in excess of 20 percent for type II diabetes mellitus with cataracts is remanded. VA’s duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran’s disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124). The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect due to the passage of time and a possible increase in disability. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (“Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination”). See also 38 C.F.R. § 3.327 (“Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect”). Regarding the Veteran’s claims, the Board notes that the last VA examination for his service-connected diabetes mellitus disability took place in June 2015. Additionally, the Veteran’s records indicate ongoing treatment, to include surgery, for his cataracts which are a condition caused by his service-connected diabetes mellitus disability, as well as treatment for his right upper extremity diabetic neuropathy. Given that the evidence indicates that the Veteran’s service-connected diabetes mellitus and diabetic neuropathy in the right upper extremity disabilities may have worsened and he appears to be receiving continued treatment for these disabilities, the Board is of the opinion that new VA examinations would be probative. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Obtain an addendum opinion as to whether it is at least as likely as not that the Veteran’s service-connected disabilities, to include diabetes mellitus, right upper extremity radiculopathy and residuals of CVA, results in any additional functional impairment associated with his right shoulder osteoarthritis (e.g., a medically discernible increase in motion loss, functional use, etc., above the degree associated with that expected from right shoulder osteoarthritis alone). 3. The Veteran should also be scheduled for VA examination before an appropriate physician to determine the current level of severity of his service-connected diabetes mellitus and diabetic neuropathy in the right upper extremity disabilities. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination reports should reflect review of these items. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran’s diabetes mellitus and diabetic neuropathy in the right upper extremity disabilities. The examiner should also evaluate and discuss the severity of all related complications of diabetes mellitus. All signs and symptoms necessary for rating these complications under the rating criteria should also be reported in order to determine whether any separate evaluations are warranted. If the examiner determines that separate examinations are warranted to evaluate any of these complications, such examinations should be scheduled. All opinions expressed by the examiner must be accompanied by a complete rationale. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.