Citation Nr: 21011425 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 06-16 512 DATE: March 1, 2021 ORDER A 20 percent rating for right shoulder impingement syndrome with bicipital tendonitis and subacromial bursitis, but no higher, effective July 7, 2014 until prior to April 13, 2010 and then effective November 1, 2010 is granted. REMANDED Entitlement to increased ratings for service-connected cervical degenerative disc disease, with herniation at C5-C6 and C6-C7 levels with cervical myositis (currently rated as 10 percent disabling from July 7, 2004 to prior to July 21, 2008, and as 20 percent disabling thereafter) is remanded. Entitlement to service connection for lumbosacral degenerative disc disease, with bulging disc at L1-L2 level with lumbar myositis is remanded. FINDING OF FACT The Veteran’s right shoulder tendonitis has always manifested in occasional incapacitating exacerbations; there is no evidence of record to suggest that the Veteran’s right (major or dominant) shoulder range of motion is limited to less than shoulder level. CONCLUSION OF LAW The criteria for entitlement to a 20 percent rating for right shoulder impingement syndrome with bicipital tendonitis and subacromial bursitis, but no higher, effective July 7, 2014 until prior to April 13, 2010 and then effective November 1, 2010 are met. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5024, 5201 (1997, 2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1980 to December 1982, and then again from October 2003 to July 6, 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. By way of background, the rating decision that is on appeal granted service connection for the neck and right shoulder disorders, while assigning initial 10 percent ratings effective July 7, 2004 (the day after discharge) for each, but denied the Veteran’s claim for service connection for a lumbar spine disorder. The Veteran has continuously prosecuted these claims. See VA Form 21-4138 (NOD) (rec’d Jan. 5, 2006). The Veteran was subsequently granted staged rating increases of 20 percent for the neck and right shoulder, each effective July 21, 2008 (the date of an examination of record). Furthermore, the Veteran received a temporary total disability rating under 38 C.F.R. § 4.30 for his right shoulder from April 13, 2010 until prior to November 1, 2010. As the Veteran is in receipt of a maximum disability rating for this service-connected disorder during that period on appeal. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). Aside from that period of time, because higher ratings are available throughout the rest of the appellate period, the claims remain on appeal accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran’s claims have been remanded three times previously by the Board: September 12, 2014; January 8, 2016; and April 28, 2017. The Veteran was most recently issued a Supplemental Statement of the Case (SSOC) on December 16, 2019. The Board accordingly reasserts jurisdiction. Ultimately, the Board concludes that while the Veteran has been afforded substantial compliance in developing his claim for his right shoulder rating, see Stegall v. West, 11 Vet. App. 268, 271 (1998), further remands are still required for the claims for his neck rating and for service connection for a lumbar spine disorder. These will all be fully discussed in relevant parts below, respectively. 1. Entitlement to a 20 percent rating for right shoulder impingement syndrome with bicipital tendonitis and subacromial bursitis, but no higher, is granted effective July 7, 2014 until prior to April 13, 2010 and then effective November 1, 2010. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). VA amended the criteria for rating musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ) on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. The Veteran generally contends that higher ratings are warranted for his neck disorder. Specific argument in support of this appeal has not been presented. Ultimately, except for the temporary total disability rating in effect from April 13, 2010 until prior to November 1, 2010, the Board resolves all reasonable doubt in the Veteran’s favor and awards a 20 percent initial rating since July 7, 2004, but no higher and no earlier. In rating the Veteran’s right shoulder disorder, the Board has considered Diagnostic Codes 5003, 5024, and 5201. 38 C.F.R. § 4.71a. Pursuant to Diagnostic Code 5003 prior to the February 2021 amendments, a 10 percent rating is awarded with x-ray evidence of involvement of two or more major joints or two or more minor joint groups; a 20 percent rating is awarded when same presents with occasional incapacitating episodes. After the amendments, Diagnostic Code 5003 is only for application when limitation of motion for the appropriate body part is noncompensable. As this is not the Veteran’s case, the new rating criteria is not more advantageous within this diagnostic code. Pursuant to Diagnostic Code 5024 both prior to and subject to the February 2021 amendments, the Veteran’s arthritis is rated as degenerative arthritis, Diagnostic Code 5003, which is delineated above. Pursuant to Diagnostic Code 5201 prior to the February 2021 amendments, a 20 percent rating is awarded for limitation of motion of the major shoulder (for the Veteran, the right) to “at shoulder level;” a 30 percent rating for limitation at “midway between side and shoulder level;” a 40 percent rating for limitation to 25 degrees from side. Pursuant to the amendments, a 20 percent rating is awarded for limitation of flexion and/or abduction to 90 degrees; a 30 percent rating for limitation of flexion and/or abduction to 45 degrees; a 40 percent rating for limitation of flexion and/or abduction to 25 degrees. The Veteran’s right shoulder was first examined in August 2005. The Veteran initially complained of a “burning sensation in right arm…always accompanied by pain and neck in shoulder, and are more notable when pain in both areas are more intense. Veteran also reported sensation of weakness in right arm when pain is intense.” See C&P Exam (Aug. 30, 2005). The Veteran also complained of decreased strength of right handgrip, and complained of pain when reaching forward and above head, including but not limited to with repetitive movements.” See id. Flexion and abduction of the right shoulder was 180 degrees with manual muscle strength of 5/5 (except subscapular strength of 4/5). Meanwhile, upon receipt of the Veteran’s NOD, he was re-examined on July 21, 2008. The Board interprets the Veteran’s NOD as disagreeing with the propriety of the initial rating, instead of an increase based upon worsening symptomatology. The Veteran was awarded a 20 percent staged rating effective July 21, 2008, based upon this examination yielding evidence of more severe symptoms of the right shoulder. The AOJ awarded a staged rating even though the Veteran continuously prosecuted his claim for his initial rating, which never became final. Now, the Board resolves all reasonable doubt in the Veteran’s favor, by instead concluding that the evidence is at least evenly balanced to suggest that all symptoms supporting a 20 percent rating as of July 21, 2008 were also initially present since at least the date the AOJ received his claim for service connection. To this extent only, the Veteran’s claim is granted, to afford an initial rating of 20 percent since July 7, 2004, except for the period of temporary total disability rating. This also represents a maximum schedular rating for Diagnostic Codes 5003 and 5024. Subsequent to the Veteran’s July 2008 examination, the Veteran’s claim for his right shoulder rating was most recently remanded in April 2017. The claim was remanded because the most recent examination did not have a Correia statement, comparing active and passing ranges of motion, in both weight-bearing and non-weight-bearing, between the damaged joint and an opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The AOJ underwent all appropriate development, and the Board now concludes that the Veteran has been afforded substantial compliance with all previous remand directives. As alluded to, VA re-examined the Veteran in March 2018, at which time flexion was measured at 100 degrees, and abduction was measured at 120 degrees. See C&P Exam (Mar. 6, 2018), at Question No. 3a. Correia statements were also supplied in this updated examination. See id. at Question No. 16. The Board concludes that the Veteran has been afforded substantial compliance with all remand directives, and the preponderance of the evidence of record precludes a finding that the Veteran is entitled to a rating in excess of 20 percent for his right shoulder disorder. Ultimately, there is no evidence that his range of motion is limited to 45 degrees in flexion or abduction, which suggests that the Veteran is level of impairment is more nearly approximated by his current 20 percent rating. To the extent that the Veteran endorsed flare-ups of the right shoulder, see generally id. at Questions Nos. 2-3 et seq., the Board finds the examiner’s explanation as to why the effects of flare-ups cannot be expressed in terms of additional degrees of range of motion lost – that such should be documented during a positive flared-up period not during a regular medical evaluation – explains the limits of a point in time medical examination and further development is not necessary, see id. at Question No. 3d; Sharp v. Shulkin, 29 Vet. App. 26, 2017. Ultimately, the Board concludes that because the Veteran’s right shoulder range of motion does not even appear to warrant a 20 percent rating, and because the Veteran’s right shoulder is alternatively rated as 20 percent disabling due to a maximum rating for arthritis, any further remand would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). For the reasons above, the Board grants an initial 20 percent rating for right shoulder impingement syndrome effective July 7, 2004, but—except for the period of temporary total disability rating under 38 C.F.R. § 4.30, as was in effect for the right shoulder from April 13, 2010 until prior to November 1, 2010—no higher and no earlier. To the extent that there remains any further portion of the Veteran’s claim for increased ratings for the right shoulder, same is denied. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to increased ratings for service-connected cervical degenerative disc disease, with herniation at C5-C6 and C6-C7 levels with cervical myositis (currently rated as 10 percent disabling from July 7, 2004 to prior to July 21, 2008, and as 20 percent disabling thereafter) is remanded. By way of background, upon examination of the cervical spine on July 21, 2008, the Veteran was diagnosed with IVDS of the cervical spine, with notations suggesting that the Veteran suffered from incapacitating episodes of unknown duration between August 2007 and October 2007, i.e., the preceding twelve months, see C&P Exam (July 21, 2008), at Page 9, but ultimately resulting in no more than eight weeks lost from employment, see id. at Page 17. Subsequent to this examination, the Veteran alternatively did not suffer from IVDS, see C&P Exam (Aug. 25, 2017), at Question No. 10a, or else did in fact have a diagnosis of IVDS, albeit with no incapacitating episodes requiring medically prescribed bed rest, see C&P Exam (Mar. 6, 2018), at Question No. 10a. The Board is unable reconcile contradictory medical findings as to the severity of the Veteran’s IVDS without supplementing the record with additional competent medical evidence. As a result, the Board has no choice but to remand to the AOJ for further development. The Board regrets additional delay that may be caused, but finds it is necessary for a full and fair adjudication of this matter. 2. Entitlement to service connection for lumbosacral degenerative disc disease, with bulging disc at L1-L2 level with lumbar myositis is remanded. In the April 2017 remand, the Board remanded to the AOJ and the AOJ was specifically instructed to obtain an adequate opinion as to the Veteran’s claim for service connection for IVDS of the lumbar spine, to specifically include as secondary to IVDS of the cervical spine. The April 2017 remand also noted that remand was required because the then-most recent VA examination (conducted in May 2016) did not comply with January 2016 Board remand instructions, including but not limited to instructions to discuss examinations of August 2005, February 2011, and March 2013. See BVA Remand (Apr. 28, 2017); Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ obtained an addendum opinion for the Veteran’s claim for service connection for a lumbar spine disorder in September 2019. See C&P Exam (Sept. 9, 2019). This addendum opinion fails to address the Veteran’s claim that the lumbar spine disorder is secondary to the cervical spine disorder, and also completely fails to address all previously identified findings. Instead, the September 2019 opinion simply states that lumbar disc degenerative changes were only noted in 2014. The Board concludes that this opinion does not offer substantial compliance with previous remand directives. As a result, the Board has no choice but to remand to the AOJ for further development to obtain another medical opinion to assist the Board with adjudication of this matter. These matters are REMANDED for the following actions: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney, and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). VA treatment records as of September 11, 2019 appear to be associated with the Veteran’s claims file. To the extent that any records may require translation, the AOJ should ensure that all records in a language other than English be accompanied with certified translated copies to English. 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current nature and etiology of his claimed neck disorder. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for an in-person examination is left to the discretion of the examiner. The AOJ is specifically advised that in determining whether an updated VA examination is required, the AOJ should attempt to ascertain if the Veteran’s cervical spine is subject to flare-ups, and if so, when flare-ups are most likely to occur. An updated examination should ideally be scheduled during a flare-up so that additional degrees of range of motion lost to flare-ups can be fully measured. **The examiner is specifically requested to reconcile contradictory findings as to whether the Veteran has IVDS of the cervical spine and was subject to any incapacitating episodes (as indicated July 2008), or else has IVDS but was not subject to any incapacitating episodes (as indicated March 2018), or else does not have IVDS of the cervical spine (as indicated August 2017), and if so, to comment as to the severity of it.** 3. After the Veteran’s claim for increased ratings for IVDS of the cervical spine is readjudicated, obtain an opinion from an appropriate clinician regarding the Veteran’s claim for service connection for a lumbar spine disorder, to specifically include as secondary to the cervical spine. The need for another examination is left to the discretion of the clinician offering the addendum opinion. The clinician is asked to respond to the following questions: (a.) With regards to the diagnosed IVDS of the lumbar spine, the examiner should offer an opinion as to whether it was at least as likely as not (a 50 percent or higher probability) that such disorder was caused by his service connected IVDS of the cervical spine? (b.) With regards to the diagnosed IVDS of the lumbar spine, the examiner should offer an opinion as to whether it was at least as likely as not (a 50 percent or higher probability) that such disorder is otherwise attributable to service? The examiner must specifically address the relevance, or lack thereof, of all of the following: i. The Veteran’s contentions that lower back pain originated in service, and that he suffered a fall in service, as specifically indicated in VA examinations dated August 2005 and February 2011; ii. All other previous findings as pertaining to the claimed lower back disorder in VA examinations dated August 2005, February 2011, and March 2013. A comprehensive rationale should be provided for all opinions offered. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. (CONTINUED ON THE NEXT PAGE)   If it is not possible to provide a specific opinion regarding the above questions, 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). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, Associate 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.