Citation Nr: 21015150 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 08-05 925 DATE: March 16, 2021 ORDER Entitlement to an initial rating greater than 20 percent for left shoulder degenerative joint disease (DJD) is denied. REMANDED Entitlement to service connection for loss of sense of smell, to include allergic rhinitis, is remanded. Entitlement to service connection for type II diabetes mellitus (DM) is remanded. Entitlement to service connection for prostate cancer residuals is remanded. FINDING OF FACT The Veteran’s left shoulder condition was manifested by painful motion limited to shoulder level; it was not manifested by limitation of arm motion to 25 degrees from his side or ankylosis. CONCLUSION OF LAW The criteria for an initial disability rating greater than 20 percent for a left shoulder condition have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1954 to August 1974. He appealed an August 2007 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for loss of smell, DM, and prostate cancer residuals. A Board of Veterans’ Appeals (Board) hearing was held in July 2010. A transcript is of record. Also before the Board is the appeal of an August 2011 rating decision denying entitlement to an initial rating greater than 10 percent for a left shoulder condition. Most recently, in September 2019, the Board remanded these issues for further development. Unfortunately, the Veteran died in July 2020. The Appellant is his surviving spouse and she was recognized as the substitute appellant for the Veteran’s pending claims. See December 2020 VA letter. As a preliminary note, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date would regularly be considered under both old and new rating criteria from that date; however, as the Veteran died before the implementation of this regulation, only the old rating criteria is applicable to the Appellant’s claim. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Shoulder disabilities are rated under DCs 5200 through 5203 of 38 C.F.R. § 4.71a. DC 5200 addresses ankylosis of the scapulohumeral articulation. DC 5201 addresses limitation of arm motion, while DC 5202 deals with other impairment of the humerus. Finally, DC 5203 addresses impairment of clavicle or scapula. See 38 C.F.R. § 4.71a. Under the rating criteria for the Shoulder and Arm, there are different rating schedules depending on whether the arm involved was major (dominant) or minor (non-dominant). The record reflects the Veteran was right-hand dominant; thus, the left arm was minor (non-dominant) for VA rating purposes. See March 2012 VA examination report. The Veteran believed his left shoulder DJD symptoms were more severe than his initial 20 percent rating under DC 5201. DC 5201, Limitation of Motion For the Veteran’s left shoulder, his non-dominant arm, limitation of arm motion at shoulder level and limitation of arm motion midway between side and shoulder level both warrant a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5201. A 30 percent disability rating is warranted for limitation of arm motion to 25 degrees from side (i.e., abduction). Id. Normal ranges of shoulder motion include flexion (forward elevation) from 0 degrees to 180 degrees, abduction (elevation of the arm to the side) from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Shoulder level is considered to be 90 degrees from a person’s side. Id. At an April 2009 VA examination, the Veteran’s left arm flexion and abduction were limited to 120 degrees with pain starting at 100 degrees. At a March 2012 VA examination, the Veteran’s left arm flexion was limited to 110 degrees with pain while his abduction was limited to 80 degrees with pain. Thus, based solely on limitation of motion, the record reflects the Veteran’s left arm is not limited to movement solely from his side to 25 degrees from his side and he is not entitled to a rating greater than 20 percent. However, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, or flare-ups is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors such as decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement. Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The record reflects the Veteran’s pain reduced his left shoulder movement during the appeal period. See, e.g., February 2008 VA treatment records. The Veteran reported suffering from flare-ups that caused increased shoulder pain separate and distinct from the constant shoulder pain he regularly felt. See March 2012 VA examination report. Specifically, he noted the pain during flare-ups limited his ability to drive and “do what [he could] do when the shoulder [was] less painful.” Id. The Veteran stated his left shoulder pain and medication affected his daily living in that he had to modify his driving techniques and the pain prohibited him from “[restraining] unruly students” during his work as a substitute teacher. See October 2011 Veteran notice of disagreement (NOD). He further stated his pain increased when “raising [his] arm, pushing external rotation, and reaching back.” See April 2009 VA examination report. The March 2012 VA examiner found the Veteran’s left shoulder flexion, originally limited to 110 degrees, was reduced to 85 degrees with repetitive motion, and she noted the Veteran was limited in overhead activities and had weakened and less movement than normal after repeated use. Another VA clinician noted the Veteran was “totally independent with everything, [he] just [had] pain with lifting…and pushing at times.” See March 2008 VA treatment records. Although the Veteran regularly reported increased shoulder pain, his flexion was never recorded as limited 25 degrees from his side. See, e.g., March 2008 VA treatment records (“flexion limited to 120”); February 2013 VA treatment records (full range of motion). The Board finds the Veteran’s testimony and the medical evidence of record do not reflect the Veteran’s left arm was ever limited to 25 degrees from his side, during flare-ups, due to pain, or with repeated use over time. As such, the Board denies entitlement to an initial rating greater than 20 percent for left shoulder DJD under DC 5201. Other Diagnostic Codes As noted above, DC 5200 addresses ankylosis of the scapulohumeral articulation; however, the record does not reflect, and neither the Veteran nor Appellant claimed the Veteran had ankylosis; hence a rating under DC 5200 is not warranted. See 38 C.F.R. § 4.71a. DC 5202 deals with other impairment of the humerus, while DC 5203 addresses impairment of clavicle or scapula. Id. Under DC 5202, in pertinent part, a 20 percent rating is warranted for any recurrent dislocation of the scapulohumeral joint and guarding of movement in the non-dominant (minor) arm. There are also separate ratings warranted for malunion of the humerus and other humerus impairment. Here, the record reflects the Veteran had infrequent recurrent dislocation of the left scapulohumeral joint. See, e.g., September 2009 VA treatment records (“chronic dislocation of left shoulder”); March 2012 VA examination report. However, there is no evidence the Veteran had guarding of movement. For example, both April 2009 and March 2012 VA examiners found the Veteran displayed no guarding and the Veteran did not report guarding of his left shoulder. As such, the Appellant is not entitled to a rating under DC 5202. DC 5203 provides a rating for any clavicle or scapula dislocation, nonunion, or malunion. Here, the March 2012 VA examiner noted the Veteran’s left distal clavicle was fractured, but not dislocated. Further, it was noted the clavicle fracture did not result in malunion or nonunion. See March 2012 VA examination report. Also, evidence of malunion, nonunion, or dislocation of the Veteran’s left distal clavicle was not reflected in the medical evidence of record. As such, a rating under DC 5203 is also not warranted. The Board has now considered all potentially applicable Diagnostic Codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). As such, the Board denies the Appellant’s claim for an initial rating greater than 20 percent for the Veteran’s left shoulder DJD. REASONS FOR REMAND The Board apologizes for further delay, but an additional remand is required for development of the Veteran’s entitlement to service connection for DM, prostate cancer residuals, and loss of sense of smell. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For DM and the loss of sense of smell, to include allergic rhinitis, the September 2019 Board remand specifically instructed the AOJ to obtain opinions regarding these conditions’ etiologies. The requested opinions were not obtained. As such, a remand is required to fulfill the September 2019 Board remand instructions. For prostate cancer residuals, the September 2019 Board remand instructed the AOJ to forward the claims file to the Under Secretary for Health and request preparation of a dose estimate, in accordance with 38 C.F.R. § 3.311(a). In January 2020, the AOJ requested the Under Secretary provide a dose estimate. In March 2020, however, the AOJ sent a confusing letter to the Under Secretary stating the Veteran “received treatment provided” by the facility and to send all records to the VA. In June 2020, the AOJ sent a second letter to the Under Secretary regarding the inaccurate March 2020 letter. Then, in July 2020, the AOJ submitted a “final attempt” letter noting the attempts made to obtain a dose estimate. Due to the confusing and inaccurate nature of these requests and in light of response delays caused by COVID-19, the Board remands the issue for proper development and compliance with the prior remand directives. The matters are REMANDED for the following action: 1. Forward the claims file to the Under Secretary for Health and request preparation of a dose estimate, to the extent feasible, based on available methodologies, in accordance with 38C.F.R. §3.311(a). 2. After a dose estimate is secured, if it is determined that the Veteran was exposed to ionizing radiation, then forward the claims file to the Under Secretary for Benefits for an opinion pursuant to 38C.F.R. §3.311(c). 3. Obtain an opinion from a qualified reviewing clinician to determine the nature and etiology of the Veteran’s DM. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: (a). Is it at least as likely as not (a 50 percent probability or more) the Veteran’s DM was incurred in or is otherwise related to his time in service? (b). Is it at least as likely as not (a 50 percent probability or more) that the Veteran’s DM was (1) caused or (2) aggravated by his service-connected hypertension and/or CAD? The reviewing clinician should note the Veteran was competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Obtain an opinion from a qualified reviewing clinician to determine the nature and etiology of the Veteran’s loss of smell, to include allergic rhinitis. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: Is it at least as likely as not (a 50 percent probability or more) the Veteran’s loss of sense of smell, to include allergic rhinitis, was (a.) caused or (b.) aggravated by his service-connected hypertension and/or CAD, to include as due to his January 1994 heart surgery? The reviewing clinician is directed to the July 2010 Board hearing transcript at p.28 where the Veteran claimed his sense of smell diminished after heart surgery in January 1994. The reviewing clinician is further directed to the June 2007 VA examination report diagnosing the Veteran with allergic rhinitis and recurrent nasal congestion. The reviewing clinician should note the Veteran was competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page)   5. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Appellant with a Supplemental Statement of the Case (SSOC) and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.