Citation Nr: 21014128 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-19 672A DATE: March 11, 2021 ORDER Entitlement to a disability evaluation in excess of 20 percent for service-connected left shoulder superior dislocation of the sternoclavicular joint with limited motion is denied. Entitlement to a compensable initial disability evaluation and entitlement to a disability evaluation in excess of 10 percent from October 5, 2020, forward, for service-connected allergic rhinitis is denied. REMANDED Entitlement to service connection for a heart condition is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The evidence weighs against a finding that the Veteran’s left shoulder superior dislocation of the sternoclavicular joint with limited motion is manifested by limited motion of the arm to 25 degrees from the side or ankylosis of the scapulohumeral articulation. 2. Prior to October 5, 2020, the Veteran’s allergic rhinitis has not manifested with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. From October 5, 2020, forward, the Veteran’s allergic rhinitis manifested with greater than 50 percent obstruction of the nasal passage on both sides, but not with polyps. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for left shoulder superior dislocation of the sternoclavicular joint with limited motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203. 2. The criteria for an initial compensable disability evaluation and a disability evaluation in excess of 10 percent from October 5, 2020, for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1987 to June 2007. This matter comes before the Board of Veterans Appeals (Board) on appeal from October 2012 and May 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Montgomery, Alabama, and Houston, Texas, respectively. The Veteran testified before a Veterans Law Judge (VLJ) other than the undersigned in February 2020; a transcript is of record. The Board previously remanded this matter in April 2020. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. When the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Left Shoulder Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain which does not rise to the level of functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Pursuant to 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran’s service-connected left shoulder disability was initially and is currently rated as 20 percent disabling pursuant to Diagnostic Code 5203. The ratings assigned under DC 5203 differ depending on whether the disability involves the major (dominant) or minor (non-dominant) extremity. The Veteran’s right arm is his major extremity according to his various VA examination reports. See 38 C.F.R. § 4.69. Accordingly, the Board will apply the evaluations relating to disorders of the minor extremity. Under DC 5203, a 10 percent evaluation is warranted for nonunion of the minor clavicle or scapula without loose movement, malunion of the clavicle or scapula, or impairment of function of the contiguous joint. A maximum 20 percent evaluation is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. Here, the Board notes that the Veteran is in receipt of the maximum schedular evaluation pursuant to DC 5203. Therefore, as the Veteran is already assigned the highest rating available under the DC, there is no basis to consider whether a higher schedular disability rating may be assigned under this code. See 38 C.F.R. § 4.71a, Diagnostic Code 5203. The Board acknowledges that the Veteran was granted a separate disability evaluation pursuant to Diagnostic Code 5202 for impairment of the humerus in an October 2020 rating decision. DC 5202 provides that a 20 percent evaluation is warranted for malunion of the humerus with either a moderate or marked deformity, or for recurrent dislocation of humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level or frequent episodes and guarding of all arm movements. A 40 percent evaluation is warranted for fibrous union of the humerus. A 50 percent evaluation is warranted for nonunion of the humerus (false flail joint). A maximum 70 percent evaluation is warranted for loss of head of the humerus (false flail joint). Here, the Veteran’s April 2014 examination did not indicate any impairment of the humerus. Likewise, the January 2016 and July 2016 examinations did not reflect any diagnoses of disorders related to the humerus. However, during his October 2020 examination, the Veteran was observed to have a history of infrequent episodes of recurrent dislocation of the scapulohumeral joint and guarding of movement only at the shoulder level. Accordingly, entitlement to a separate 20 percent evaluation pursuant to Diagnostic Code 5202 effective October 5, 2020, the date on which medical evidence first indicated that entitlement to such a rating arose, is warranted. However, as no fibrous union, nonunion, for loss of head of the scapulohumeral joint was observed, the Veteran is not entitled to a disability evaluation in excess of 20 percent pursuant to DC 5202. There are also separate evaluations available for limitation of motion of the arm pursuant to DC 5201. As would apply to the minor extremity, a 20 percent evaluation is warranted for limitation of movement at the shoulder level or for limitation of movement midway between side and shoulder level; and a 30 percent evaluation is warranted for limitation of motion to 25 degrees from the side. See 38 C.F.R. § 4.71a. VA regulation defines normal range of shoulder motion as flexion from 0 to 180 degrees; abduction from 0 to 180 degrees; external rotation from 0 to 90 degrees; and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Lifting the arm to shoulder level means lifting from 0 to 90 degrees. See id. Limitation of motion under DC 5201 may be compensated based on limitation of abduction or limitation of flexion – the two planes of movement involving lifting of the arm from the side – whichever would afford the higher rating. Yonek v. Shinseki, 722 F.3d 1355, 1358-59 (Fed. Cir. 2013) (citing Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003)). However, separate ratings for both limitation of abduction and flexion are not available under this diagnostic code. Id. (holding that “the plain language of [DC] 5201 . . . allows only a single rating for ‘limitation of motion’ of an arm”). Turning to the examinations of record, when the Veteran was evaluated for his condition in April 2014, he reported progressively worsening pain, including a numbing feeling from the left clavicle to the mid-deltoid which was aggravated by weather changes, mowing the lawn, gardening, weeding, and repetitive movement of the left shoulder. The only palliative factor, according to the Veteran, was a hot shower. However, he did not report flare-ups of his condition. On examination, he exhibited normal, non-painful, ranges of motion on both flexion and abduction. After repetitive use testing, the Veteran’s ranges of motion did not change. No muscle weakness or guarding of the shoulder were found. However, the examiner concluded that the Veteran’s condition impacted his ability to work. Specifically, the Veteran’s pain would increase with overhead left arm use, carrying more than 20 pounds, and climbing ladders. No ankylosis of the shoulder or arm was noted. During a January 2016 examination, the Veteran reported difficulty pushing and pulling with his left arm and shoulder. He also noted that when the weather is cold or there is a change in weather, his left shoulder would feel tender. He informed the examiner that he could not do any overhead work and that he felt weak in the arm; however, he did not report any flare-ups of his condition. Initially, the Veteran’s flexion measured to 90 degrees and abduction measured to 70 degrees. The examiner found that the Veteran exhibited pain on all ranges of motion which in turn contributed to his functional loss. After repetitive use testing, however, no additional limitation in function or range of motion was noted. The examination report reflects normal muscle strength and no ankylosis. However, the examiner found that the Veteran’s condition impacts his ability to work, as he is not able to push and pull things and it is difficult for him to reach overhead. When the Veteran was again examined in July 2016, he reported difficulty doing yard work and anything requiring both hands due to shoulder pain and weakness. His flexion measured to 90 degrees and his abduction measured to 110 degrees. His range of motion was painful and contributed to functional loss; however, on repetitive use testing no additional loss of function or change in range of motion was noted. Again, the Veteran exhibited normal muscle strength and no ankylosis. Nevertheless, the examiner found that the Veteran, in his position as a radio telephone operator, had sometimes limited changing of the dial on the radio or lifting the radio due to his service-connected left should disability. Finally, when the Veteran was most recently evaluated in October 2020, he stated that he experiences slight numbness in the left shoulder, pain in the left upper extremity, and limited movement, which he would treat with physical therapy, Motrin, Naproxen, and Flexeril. Again, the Veteran did not report flare-ups of his condition, but he informed the examiner that he could not lift overhead. His flexion measured to 85 degrees and his abduction measured to 85 degrees. There was pain noted on all ranges of motion which contributes to his functional loss of the left shoulder. After repetitive use testing, however, no changes to range of motion were found. He was found to continue to have normal muscle strength and no ankylosis. The examiner also concluded that the Veteran’s ability to work was adversely affected by his shoulder condition as he would have difficulty completing tasks which required overhead reaching. Here, the Board notes that the Veteran’s range of motion does not meet the criteria for entitlement to a higher evaluation pursuant to DC 5201. Currently, the Veteran is in receipt of a 20 percent evaluation which is warranted for limitation of motion of the minor extremity both at shoulder level and midway between side and shoulder level. At worst, the Veteran’s limitation of flexion and/or abduction was to 85 degrees, just below shoulder level. During none of the Veteran’s examinations was motion to 25 degrees from the side noted. The Veteran’s various examination reports of record continuously reflect painful limited range of motion of the cervical spine. Accordingly, the criteria in DeLuca and Mitchell regarding painful motion are encompassed in the Veteran’s compensable disability evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. at 43. Consequently, the Board finds that entitlement to a separate higher evaluation pursuant to DC 5201 is not warranted. Additionally, the Board acknowledges that separate evaluations can be warranted for ankylosis of the scapulohumeral articulation pursuant to Diagnostic Code 5200. Specifically, for minor extremities, a 30 percent evaluation is warranted for intermediate ankylosis between favorable and unfavorable and a 40 percent evaluation is warranted for unfavorable ankylosis, with abduction limited to 25 degrees from the side. A Note to the Diagnostic Code defines ankylosis in this matter as the scapula and humerus moving as one piece. As noted above, during none of the Veteran’s previous examinations was ankylosis found. Moreover, the Veteran’s abduction during each of his examinations did not measure to 25 degrees. Therefore, the Board finds that entitlement to a separate higher evaluation pursuant to DC 5200 is not warranted. To summarize, the Board finds that the Veteran’s service-connected left shoulder superior dislocation of the sternoclavicular joint with limited motion is properly evaluated as 20 percent disabling and a higher evaluation is not warranted pursuant to any of the diagnostic codes applicable to disabilities involving the shoulder. The preponderance of the evidence weighs against the Veteran’s claim, and therefore the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a; Gilbert, 1 Vet. App. at 55. 2. Allergic Rhinitis Under DC 6522, a 10 percent evaluation is warranted for allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete nasal obstruction on one side. A 30 percent evaluation is warranted for allergic rhinitis with polyps. During the Veteran’s April 2014 examination, he reported blocked nasal cavities, watery/itchy eyes, and sneezing. The examiner found that there was no greater than 50 percent obstruction of the nasal passage on both sides and that there was no complete obstruction on either side. Additionally, no nasal polyps, permanent hypertrophy of the nasal turbinates, or granulomatous conditions were observed. The Veteran reported for another examination in January 2016, at which time he reported intermittent continuous sneezing and dried mucus in the nose. He also informed the examiner that he continued to have nasal drip despite the use of nasal sprays. He stated that he was taking Claritin, Flonase, and Nasonex for his condition. The examiner in turn found that there was not greater than 50 percent obstruction of nasal passage on both sides and that there was not complete obstruction of either side due to the Veteran’s allergic rhinitis. Furthermore, the examiner did not find permanent hypertrophy of the nasal turbinates, nasal polyps, or granulomatous conditions. However, the examiner noted that the Veteran’s allergic rhinitis impacts his ability to work. Specifically, the Veteran’s continuous sneezing and runny nose caused problems while working. When he was examined in October 2020 for his allergic rhinitis, the Veteran reported current symptoms of nasal congestion, nasal drip, and watery, itchy eyes. He told the examiner that he was treating his condition with Claritin and Flonase. The examiner found greater than 50 percent obstruction of the nasal passage on both sides, but not complete obstruction on either side. No permanent hypertrophy of the nasal turbinates, nasal polyps, or granulomatous conditions were observed on examination. Here, the Board notes that entitlement to a compensable evaluation for the Veteran’s allergic rhinitis did not arise until his October 2020 evaluation. During neither the April 2014 nor the January 2016 examination were either greater than 50 percent obstruction of the nasal passage or complete obstruction of the nasal passage on either side found. Accordingly, the Board finds that entitlement to an initial compensable evaluation is not warranted. Furthermore, during the October 2020 examination, the Veteran’s allergic rhinitis met the criteria for a 10 percent evaluation, but no higher. As noted above, the Veteran was found to have greater than 50 percent obstruction of the nasal passage on both sides, thus meeting the criteria for a 10 percent evaluation effective October 5, 2020, the first date of medical evidence indicating an increase in the severity of the Veteran’s condition. During none of the above-mentioned examinations were nasal polyps found. Therefore, the Veteran’s allergic rhinitis does not warrant a higher evaluation based on the schedular criteria. The evidence preponderates against the claim for increased ratings, and as such there is no doubt to resolve. Thus, the Veteran’s claim for a compensable initial disability evaluation and for a disability evaluation in excess of 10 percent from October 5, 2020, forward, for allergic rhinitis is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Heart Condition After the issuance of the April 2020 remand, the Veteran was examined twice for a current heart condition. The first examination in June 2020 found that the Veteran did not have a current heart condition. However, the Board previously noted in its April 2020 decision that the Veteran had been diagnosed with hypertensive heart disease, mild ventricular diastolic dysfunction, and mitral regurgitation. As such, the June 2020 opinion is based on an inaccurate factual premise and is therefore inadequate to ascertain the nature and etiology of the Veteran’s current heart disability. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Importantly, a current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending, even if it resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board also finds that the opinion obtained in October 2020 is inadequate. The examiner concluded that the Veteran’s current valvular heart disease is less likely than not etiologically related to his active service and reasoned that a lack of such evidence of a heart condition in the service treatment records was sufficient to indicate no causal relationship between service and the Veteran’s current condition. An examination that relies primarily on the absence of contemporaneous medical records to render a negative opinion is inadequate. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231 (2012)). Furthermore, the October 2020 opinion provided an opinion concluding that the Veteran’s current condition was not proximately due to or the result of his service-connected disabilities; however, an opinion regarding aggravation was not provided. See El-Amin v. Shinseki, 26 Vet. App. 136 (2012). Therefore, the Board requests an addendum opinion as to the nature and etiology of his current heart condition(s). 2. TDIU The Board finds that the issue of entitlement to a TDIU, including as due to the Veteran’s above-listed service-connected disabilities, is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also 38 C.F.R. §§ 3.340, 4.16. The issue of TDIU is part and parcel of the increased rating claims and thus is before the Board via the appeal of those issues. Rice, 22 Vet. App. at 453. The Veteran’s various examination reports of record reflect that his service-connected disabilities adversely impact his ability to work. See April 2014 VA Shoulder C&P Examination; January 2016 VA Rhinitis C&P Examination; January 2016 VA Shoulder C&P Examination; July 2016 VA Shoulder C&P Examination; October 2020 VA Shoulder C&P Examination. Although raised by the evidence, the claim for a TDIU as relates to the Veteran’s above-listed service-connected disabilities has not been addressed by the Agency of Original Jurisdiction (AOJ). Thus, the Board finds that additional development is necessary before his claim for entitlement to a TDIU can be adjudicated. The matters are REMANDED for the following action: 1. Forward the claims file, including a copy of this remand, to an appropriate clinician who has not previously provided an opinion in this case to provide an addendum opinion as to the nature and etiology of any and all heart condition(s) attributable to the Veteran throughout the appellate period. The clinician must note review of the entire claims file. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician is asked to identify any and all heart disorder(s) attributable to the Veteran throughout the appellate period. (b) For each disorder so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disorder manifested during, or is the result of, his active service. (c) For each disorder so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disorder was either (i) caused or (ii) aggravated by his service-connected disabilities. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of disability prior to such. In formulating his or her opinions, the clinician should consider and address all relevant competent medical and lay evidence of record, including, but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s post-service VA medical records; (iii) The Veteran’s post-service private medical records; and (iv) The Veteran’s competent lay statements, including his February 2020 hearing testimony, regarding the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s heart condition(s) is/are less likely than not due to active service and/or less likely than not caused and/or aggravated by his service-connected disabilities, the clinician should discuss what other factor(s) caused the disorder(s). In other words, the clinician should ascertain the most likely etiology of the Veteran’s heart disorder(s). A complete rationale must be provided for all opinions and conclusions reached. 2. Send the Veteran a formal application for TDIU (VA Form 21-8940) and request him to complete and return the form. 3. When the completed VA Form 21-8940 has been submitted by the Veteran, or after a reasonable time has been provided for him to complete and return the form, and after conducting any additional development that may be warranted as determined by the AOJ, adjudicate the issue of entitlement to a TDIU. If TDIU is denied, the Veteran is advised that the issue will be returned to the Board for further review. The Veteran need not separately appeal this issue. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.