Citation Nr: 21016051 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-20 008 DATE: March 19, 2021 ORDER Entitlement to a schedular disability evaluation in excess of 20 percent prior to March 2020, and in excess of 50 percent thereafter for impingement syndrome, left shoulder, with degenerative joint disease (DJD), status post arthroscopy with subacromial decompression (nondominant), (left shoulder disability) is denied. REMANDED Entitlement to service connection for hearing loss, left ear, is remanded. Entitlement to an initial compensable rating for hearing loss, right ear, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the appeal period the Veteran’s left shoulder disability has not been productive of limitation of motion of the arm to 25 degrees from the side, ankylosis, non-union, malunion or severe painful motion or weakness. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent prior to March 2020, or to a rating in excess of 50 percent thereafter for left shoulder disability are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.59, 4.71a, Diagnostic Code (DC) 5200, 5201, 5202, 5203, 5051 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1971 to September 1974 and from February 1977 to July 1978. This case comes to the Board from a rating decision by the VA Regional Office (RO). At a December 2019 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This case was previously before the Board in February 2020, at which time it was remanded for additional development. That development having been completed; this case is once again before the Board. While on remand, the Veteran’s left shoulder disability rating was increased to 50 percent, effective March 4, 2020 by the RO in an April 2020 rating decision. It is noted that applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). As the increased evaluation does not cover the entire appeals period and there are higher evaluations available for the service-connected left shoulder disability, the Veteran's claim is still in controversy and shall continue to be adjudicated by the Board. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. § Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1 (2019). Where there is a question as to which of two disability evaluations shall be applied, 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. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record documents that the Veteran's left extremity is her non-dominant or minor extremity as established in her service treatment records and later confirmed in her most recent 2020 VA examination. 38 C.F.R. § 4.69. As such, all further discussion of the schedular criteria shall be undertaken for the ratings afforded the minor extremity. Disorders of the shoulders are rated under DC 5200 through DC 5203 of 38 C.F.R. § 4.71a. Shoulder flexion is measured from 0 degrees to 180 degrees; abduction is measured from 0 degrees to 180 degrees. 38 C.F.R. § 4.71a, Plate I. Under DC 5200, which pertains to ankylosis of the scapulohumeral articulation (Note: the scapula and the humerus move as one piece), a 20 percent disability rating is warranted when there is favorable ankylosis of the major upper extremity with abduction to 60 degrees and the ability to reach the mouth and head with the major upper extremity; a 30 percent disability rating is warranted when the ankylosis in the major upper extremity is intermediate between favorable and unfavorable; and a 40 percent disability rating is warranted when there is unfavorable ankylosis with abduction limited to 25 degrees from the side. Under DC 5201, which pertains to limitation of motion of the arm, a 20 percent evaluation is warranted for limitation of arm motion to midway between side and shoulder level and a 30 percent evaluation is warranted for limitation to 25 degrees from the side. Under DC 5202, which pertains to impairment of the humerus, a 20 percent evaluation is warranted for malunion with moderate and marked deformity and recurrent dislocation of at scapulohumeral joint with both frequent and infrequent episodes and guarding of movement only at shoulder level or of all arm movements; a 40 percent evaluation is warranted for fibrous union of the humerus; a 50 percent evaluation is warranted for non-union of the humerus; and 70 percent evaluation is warranted for a loss of the head of the humerus. Under DC 5203, which pertains to impairment of the clavicle, a 20 percent evaluation is warranted for non-union or dislocation. The Veteran’s condition has also been noted to involve degenerative arthritis. This is evaluated under DC 5003, in which degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Under DC 5051, for a minor extremity, a 100 percent rating is assigned for one year after arthoplasty. A 50 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; or, a minimum 20 percent rating is assigned when there are intermediate degrees of residual weakness, pain, or limitation of motion, and these intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, DCs 5200 to 5203. The Board also notes that VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. The amendment, in pertinent part, changed the rating criteria for DCs 5003 (degenerative arthritis); DC 5201 (arm, limitation of motion of); DC 5202 (humerus, other impairment of); and added notes to DC 5051. See 85 Fed. Reg. 76453 (November 30, 2020). The amendments amended DC 5003 by characterizing degenerative as being a different and distinct type of arthritis from traumatic. However, the actual rating criteria for this DC remained unchanged. Therefore, there is no effect on the instant case. The amendments to DC 5201 and 5201 clarified that limitation to shoulder level is equivalent to flexion and/or abduction limited to 90 degrees and limitation to midway between the side and shoulder level is equivalent to flexion and/or abduction limited to 45 degrees. The amendments to DC 5051 added notes to the existing rating criteria. Note (1): When an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051-5056, an additional rating under §4.71a may not also be assigned for that joint, unless otherwise directed. Note (2): Only evaluate a revision procedure in the same manner as the original procedure under diagnostic codes 5051-5056 if all the original components are replaced. Note (3): The term “prosthetic replacement” in diagnostic codes 5051-5053 and 5055-5056 means a total replacement of the named joint. However, in DC 5054, “prosthetic replacement” means a total replacement of the head of the femur or of the acetabulum. Note (4): The 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under §4.30 following hospital discharge. Note (5): The 100 percent rating for 4 months following implantation of prosthesis or resurfacing under DCs 5054 and 5055 will commence after initial grant of the 1-month total rating assigned under §4.30 following hospital discharge. Note (6): Special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. Last, disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2019). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2019). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran filed her claim June 24, 2013. A review of the Veteran’s outpatient treatment records since that time reveals that she has been followed throughout the appeal period for her left shoulder disability. The Veteran was seen in April 2014 for complaints of left shoulder pain. It was noted that there was pain with passive range of motion, no crepitus, tenderness along subacromial space and glenohumeral joint, decreased abduction, and inability to lift her arm over her head. The Veteran was provided with a VA examination in April 2014. She was diagnosed with degenerative joint disease, impingement syndrome, status-post scope of the left shoulder and residuals of hemiarthroplasty left shoulder. It was noted that the Veteran complained of pain and continuous progressive loss of motion for which she had an upcoming surgery scheduled. No flare-ups were noted. Range of motion testing revealed flexion to 30 degrees with pain beginning at 15 degrees. Abduction was limited to 40 degrees with pain beginning at 25 degrees. There was no change on repetition. Degenerative arthritis was documented. There was no malunion, non-union, or ankylosis. Functional impacts included avoidance of lifting and repetitive shoulder movements. In May 2015, imaging revealed no dislocation or fracture. The Veteran was seen in September 2015 for complaints of pain in the left shoulder and a consultation for an arthroplasty procedure. It was noted that she had a hemiarthroplasty in 2010, for which she had received a prosthesis. Forward flexion was to 90 degrees on active and 140 degrees on passive; abduction was to 45 degrees with severe pain on active and to 90 degrees with pain on passive; external rotation was to 30 degrees, and internal rotation was limited to the sacrum with significant pain. A diagnostic arthroscopy was performed that month. In October 2015, the Veteran was seen post-surgery in which it was noted that this had shown synovitis with metallosis throughout the glenohumeral joint, exposed metal anchor in the glenoid, and intact rotator cuff. Abduction and flexion were found to be to 30 degrees active and 170 degrees passive. In July 2017, the Veteran was seen for left shoulder pain. It was noted that the Veteran had pain and inability to use functionally. Observation was made of guarding with cogwheel-like movement without any active range of motion. Active flexion was limited to 35 degrees and active abduction was limited to 30 degrees. Passive flexion was limited to 85 degrees and passive abduction was limited to 85 degrees. In August 2017, the Veteran was seen for complaints of left shoulder pain. Flexion was limited to 45 degrees, extension was limited to 20 degrees, abduction was limited to 30 degrees, adduction was limited to 20 degrees, and could not perform external rotation. In September 2017, the Veteran was seen for complaints of left shoulder pain. Active range of motion for flexion was limited to 38 degrees and abduction was limited to 29 degrees. In October 2017, the Veteran was seen for complaints of left shoulder pain. Range of motion for flexion was active limited to 30 degrees and passive limited to 130 degrees; abduction active was limited to 40 degrees and passive limited to 70 degrees; external rotation was limited to 50 degrees; and motor examination was 2/5. In November 2017, the Veteran was seen for complaints of left shoulder pain and prescribed a TENS unit. In February 2018, the Veteran was seen for complaints of left shoulder pain. Imaging revealed humeral prosthesis unchanged. The Veteran was provided with an additional VA examination in July 2019. At the examination the Veteran was diagnosed with left shoulder pain, frozen, status-post hemiarthroplasty. No flare-ups were noted. Range of motion testing revealed limitation of motion to 40 degrees of flexion. Abduction was limited to 40 degrees. External rotation was limited to 45 degrees. Internal rotation was limited to 30 degrees. All movements were accompanied by pain. There was no change on repetition or for passive ranges of motion. There was no malunion, non-union, or ankylosis. Functional impacts included avoidance of lifting and repetitive shoulder movements. The Veteran was provided with an additional VA examination in March 2020. At the examination, the Veteran was diagnosed with left shoulder impingement, degenerative joint disease, and status-post arthroscopy with subacromial decompression (non-dominant). The Veteran complained of pain on overhead movements and flare-ups. Range of motion testing revealed limitation of motion to 40 degrees of flexion. Abduction was limited to 45 degrees. External rotation was limited to 90 degrees. Internal rotation was limited to 90 degrees. All movements were accompanied by pain. Pain was noted to be mild. There was no change on repetition or for passive ranges of motion or flare-ups. There was no malunion, non-union, or ankylosis. Functional impacts included avoidance of lifting and repetitive shoulder movements. After having reviewed the evidence of record, the Board finds that a schedular evaluation in excess of the ratings assigned is not indicated. Notably, none of the records reflect limitation of motion of the affected arm to 25 degrees from the side. There also has been no showings of ankylosis, recurrent dislocation, malunion or nonunion. Likewise, the record does not show severe , painful motion or weakness. In this regard, it appears the regional office assigned a 50 percent evaluation effective from a March 2020 examination, under the provisions of DC 5051 for severe painful motion. Since the report of that examination characterizes the Veteran’s pain as mild, however, the Board does not consider that evidence to permit a rating in excess of that which has been assigned. In reaching this decision, the Board notes that the changes to the rating schedule that went into effect in February 2021, do not provide for higher ratings than those already assigned under the facts of this case. REASONS FOR REMAND 1. Left Ear Hearing Loss The Veteran’s claim was previously remanded to afford the Veteran an adequate VA examination with well-supported nexus opinion. In this regard, it was previously noted in the prior February 2020 Remand that the Veteran had described noise exposure in service and the June 2019 speech recognition score indicated current hearing loss for VA purposes. The only VA opinion of record regarding the Veteran's left ear hearing loss, via a March 2014 VA audiological examination, determined that any loss was not related to active service due to normal hearing throughout the STRs and no significant threshold shifts during service. The opinion did not then go on to explain why these facts were determinative. As such, the Board found that a new VA opinion was needed to determine whether the Veteran's current left ear hearing loss is related to his described in-service noise exposure. The Veteran was provided with a VA audiological examination in March 2020 The examiner ultimately found that the Veteran’s left ear hearing loss was less likely than not caused by or incurred in military service. In support, the examiner continued to provide that the lack of evidence of documented threshold shift in service was determinative of the lack of a nexus. However, again, no further explanation was provided despite the February 2020 Remand’s directives to do so. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Id. at 271. Here, the Board finds that the VA examiner failed to comply with the Board’s prior remand directives. As such, the claims file should be returned to the VA examiner so that a proper opinion with rationale as previously requested may be provided. Again, the Board highlights that any opinion must be supported by a medical rationale which is based on more than a lack of in-service evidence of hearing loss, although if there is a medical basis for concluding current hearing loss is not related to in-service noise exposure because there is a lack of in-service hearing loss, that should be expressed/explained. 2. Right Ear Hearing Loss If impaired hearing is service-connected in only one ear, the Rating Schedule assigns a certain value to the nonservice-connected ear to derive the service-connected ear's disability rating. If hearing loss is service-connected bilaterally, audiological results for both ears are used conjunctively to derive one disability rating. As such, the claim for a compensable initial rating for right ear hearing loss is inextricably intertwined with the issue of service connection for left ear hearing loss. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. TDIU Additionally, because the outcome of the remanded hearing loss claims may change the Veteran’s overall combined evaluation and, therefore, make the basis of a schedular evaluation more or less likely, such claim is also found to be inextricably intertwined. See Harris, 1 Vet. App. at 180. The matters are REMANDED for the following action: 1. The Veteran’s claims file should be provided to a person with appropriate expertise to address the question of service connection for left ear hearing loss. If it is necessary to examine the Veteran to obtain the requested information, that should be arranged (a.) After a review of the evidence of record, the reviewer is asked to render an opinion as to whether any left ear hearing loss disability demonstrated during the appeal period is at least as likely as not (probability of 50 percent or greater) related to the Veteran’s active duty service. (b.) A full rationale for all opinions expressed should be provided. The examiner should focus specifically on whether the noise exposure in service caused any left ear hearing disability shown during the appeal period. Facts and medical principles relied upon to arrive at an opinion should be set forth, including any principles relating to the possibility of a delayed onset of loss of acuity due to noise exposure in service. The significance of normal hearing acuity revealed on any earlier left ear hearing evaluations should be explained, and in this regard, the reviewer is reminded that any opinion must be supported by a medical rationale which is based on more than a lack of in-service evidence of hearing loss, although if there is a medical basis for concluding current hearing loss is not related to in-service noise exposure because there is a lack of in-service hearing loss, that should be expressed/explained. 2. Re-adjudicate the claims. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.