Citation Nr: 21014667 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-28 746A DATE: March 15, 2021 ORDER 1. The reduction of the 20 percent disability rating to 10 percent for left shoulder arthritis effective from July 1, 2016 was not proper; restoration of the 20 percent rating is granted. 2. The appeal for restoration of a 20 percent rating for left shoulder tendonitis is dismissed. REMANDED 3. Service connection for arthritis of the right shoulder is remanded. FINDINGS OF FACT 1. As of July 1, 2016, the 20 percent rating for degenerative changes of the left shoulder had been in effect for less than five years. 2. At the time of the reduction, the degenerative changes of the left shoulder did not show material improvement under the ordinary conditions of life and work. 3. At the May 2019 Board of Veterans’ Appeals (Board) hearing, the Veteran, with the assistance of his representative, indicated that he wished to withdraw the issue of restoration of a 20 percent rating for left shoulder tendonitis. CONCLUSIONS OF LAW 1. The reduction of the 20 percent rating for left shoulder arthritis to 10 percent was not proper, and the 20 percent disability rating is restored effective from July 1, 2016 forward. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, Diagnostic Code 5201. 2. The criteria for withdrawal of the issue of restoration of a 20 percent rating for left shoulder tendonitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1996 to March 1997. The Veteran testified at a May 2019 hearing before the Board. At the May 2019 Board hearing, the Veteran, through counsel, specifically stated that he was not requesting a rating in excess of 20 percent for left shoulder arthritis and was requesting only a restoration of the 20 percent rating. 1. A 20 Percent Rating for Left Shoulder Arthritis is Restored Effective July 1, 2016, the Regional Office (RO) reduced the 20 percent rating for the service-connected left shoulder disability to 10 percent. The Board will now consider the propriety of the rating reduction, and whether the 20 percent rating should be restored. At the time the reduction became effective, July 1, 2016, the 20 percent rating for a left shoulder disability had been continuously in effect for less than five years. A rating reduction is not proper unless a veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000); Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, the left shoulder disability was rated under the criteria found at 38 C.F.R. § 4.71a, DC 5201. A 20 percent rating is provided under DC 5201 when there is evidence of limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees). 38 C.F.R. § 4.71a. A March 2016 VA examination shows that the Veteran is right hand dominant, making the left arm the minor arm. A 10 percent rating is not provided under DC 5201. A 10 percent rating is provided under DC 5003 for degenerative arthritis with painful motion to a noncompensable level. After review of the lay and medical evidence of record, the Board finds that a material improvement of the left shoulder disability was not demonstrated, including under the ordinary conditions of life and work; therefore, the rating reduction was not proper, and the criteria for restoration of a 20 percent rating for a left shoulder disability, effective July 1, 2016, have been met. In December 2014, the RO granted service connection for a left shoulder disability with a 20 percent rating effective from August 29, 2013. The 20 percent rating for left shoulder arthritis was based on the December 2014 VA examination results showing limited motion of the arm at the shoulder level. In consideration of these findings at the VA examination, the RO found that the left shoulder disability picture was consistent with the 20 percent rating criteria under DC 5201. At the time of the rating reduction decision, the evidence suggested an improvement of the left shoulder disability more consistent with the criteria for a 10 percent rating under DC 5003 (for painful but noncompensable limitation of motion of a major joint). In the March 2016 VA examination report, the VA examiner wrote that the left shoulder disability was manifested by limitation of flexion to 130 degrees. The RO reduced the rating to 10 percent based on this single VA examination measure of increase in the range of motion of the left shoulder. Post-reduction evidence shows a fluctuation of the Veteran’s left shoulder disability with periods of deterioration, such that material improvement of the left shoulder disability is not demonstrated. The March 2016 VA examination also shows that the Veteran reported increased pain in the left shoulder and that he was receiving injections in the left shoulder and required daily pain medication for the left shoulder. This evidence provides further support for finding that the left shoulder disability had not materially improved the at the time of the rating reduction. When compared to the evidence of record when the 20 percent rating was initially awarded for the left shoulder disability in December 2014, the evidence at the time of the rating reduction did not show material improvement of the left shoulder disability. Rather, it showed a fluctuation of left shoulder symptoms and impairment with an overall disability picture still more nearly approximating the 20 percent rating criteria, as the Veteran reported increased pain in the left shoulder and requiring injections and daily pain medication to treat left shoulder symptoms. In consideration thereof, the Board finds that it has not been established by a preponderance of the evidence that the left shoulder disability had undergone material improvement under the ordinary conditions of life and work at the time of the rating reduction decision. Because the weight of the evidence of record in this case is against finding material improvement in the service-connected left shoulder disability at the time of the April 2016 rating reduction decision, the Board finds that the reduction of the 20 percent rating to 10 percent rating effective from July 1, 2016, was not proper; therefore, the 20 percent disability rating for the left shoulder disability will be restored. 2. The Issue of Restoration of a 20 Percent Rating for Left Shoulder Tendonitis is Dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At a May 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran, with the assistance of a representative, withdrew the appeal on the issue of restoration of a 20 percent rating for left shoulder tendonitis. As such, there remain no allegations of errors of fact or law for appellate consideration in this matter. Accordingly, the Board does not have jurisdiction to review the appeal for this issue, and it is dismissed. REASONS FOR REMAND 3. Service Connection for Arthritis of the Right Shoulder The Board has carefully considered the assertions of the Veteran and representative at the May 2019 Board hearing that the opinion of the March 2015 VA examiner was not supported by an adequate rationale and did not discuss whether it was at least as likely as not that overuse from compensation for the left arm disability caused or aggravated the arthritis of the right arm. The Board has reviewed the March 2015 VA examination and finds that an inadequate rationale was provided by the March 2015 VA examiner. For this reason, a remand is warranted to obtain an opinion regarding secondary service connection (38 C.F.R. § 3.310) for right arm arthritis that is supported by a rationale. This issue is REMANDED for the following action: Obtain a medical opinion from an appropriate medical examiner. The relevant facts and medical history should be made available to the specialist. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner is informed of the following facts: (a.) The Veteran has a current diagnosis of both right and left shoulder arthritis and is currently service connected for the left shoulder arthritis only. (b.) The Veteran has asserted that the service-connected left shoulder arthritis caused him to compensate using his right arm, which caused or aggravated the right shoulder arthritis. The examiner is asked to offer the following opinions: Is it at least as likely as not (50 percent probability or greater) that the right shoulder arthritis is caused by the service-connected left shoulder arthritis, to include due to compensation for the service-connected left shoulder by relying more heavily on the right shoulder? (Continued on the next page)   Is it at least as likely as not (50 percent probability or greater) that the right shoulder arthritis is aggravated by (worsened in severity beyond its normal progression by) the service-connected left shoulder arthritis, to include due to compensation for the service-connected left shoulder by relying more heavily on the right shoulder? J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.