Citation Nr: 21023266 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-20 658 DATE: April 20, 2021 ORDER A 30 percent rating, but no higher, from September 16, 2009, to August 21, 2009, for residuals of a right shoulder rotator cuff tear with impingement syndrome (right shoulder disability) is granted. A rating higher than 30 percent, since August 22, 2019, for a right shoulder disability is denied. REMANDED The issue of a rating higher than 10 percent, prior to June 19, 2012, for lumbosacral strain with degenerative joint disease (a low back disability) is remanded. The issue of a rating higher than 20 percent, since June 19, 2012, for a low back disability is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s right shoulder disability, minor extremity, more nearly approximates limitation of motion to 25 degrees from side, considering his right shoulder flare-ups, pain, and functional impairment. This is the highest rating available for minor arm limitation of motion. 2. The Veteran’s right shoulder disability has not manifested with ankylosis or impairment of the humerus. CONCLUSIONS OF LAW 1. From September 16, 2009, to August 21, 2009, the criteria for a 30 percent rating, but no higher, for the right shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.73, Diagnostic Code (DC) 5201. 2. Since August 22, 2009, the criteria for a rating higher than a 30 percent rating for the right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.73, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1992 to June 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2010 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran presented testimony before the Board. In a January 2021 letter, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted the June 2013 hearing is no longer available, and he was offered another opportunity for a hearing before a current VLJ who would participate in the decision in his appeal, consistent with 38 C.F.R. §§ 20.707 and 20.717. The Veteran was also notified that if he did not respond within 30 days from the date of the January 2021 letter, the Board will assume that he does do not want another Board hearing and will proceed accordingly. The Veteran did not respond to the January 2021 letter, and therefore, it is assumed that the Veteran does not want a hearing before a different VLJ. In March 2015, January 2018, February 2019, and January 2020, the Board remanded the appeal for additional development. Specifically, in January 2020, the appeal was remanded to obtain updated VA treatment records and to schedule the Veteran for a VA examination to determine the severity of his service-connected right shoulder, to include compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Updated VA treatment records have been associated with the record, and in August 2020 the Veteran was afforded a VA examination that reflected the current severity of his service-connected right shoulder disability. Notably, the August 2020 VA examination report reflects that the VA examiner provided sufficient findings that complied with the requirements in Correia and Sharp. Accordingly, the August 2020 VA examination is sufficient for evaluation purposes, as the examiner rendered findings responsive to the rating criteria. See 38 C.F.R. § 4.2. Therefore, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions, with respect to the rating claim for the right shoulder disability. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran submitted his increased rating claim for his right shoulder on September 16, 2009. His right shoulder disability is rated as 20 percent disabling prior to August 22, 2019, and 30 percent disabling thereafter under DC 5201 (arm, limitation of motion of). Ratings assigned pursuant to this DC may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (non-dominant) extremity. The Veteran is left-handed dominant (documented in an August 2020 VA examination); therefore, his right shoulder disability affects his minor extremity. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). DC 5201 rating criteria was not amended, other than clarifying that the loss of motion included flexion or abduction and provided specific range of motion measurements for the ratings. Under DC 5201, limitation of motion, a 20 percent rating is warranted when motion of the minor shoulder is limited to shoulder level at 90 degrees. Limitation of motion of the arm from midway between the side and shoulder level, 45 degrees, warrants a 20 percent rating for the minor extremity. Limitation of motion to 25 degrees from the side warrants a 30 percent rating for the minor extremity. See 38 C.F.R. § 4.71a, DC 5201. For reference, standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complaints of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require “objective” evidence but can be satisfied with lay and other nonmedical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Turning to the evidence, the Veteran was afforded VA shoulder examinations in May 2010, June 2012, February 2016, June 2018, August 2019, and August 2020. During VA examinations, VA treatment visits, the June 2013 Board hearing, and in his statements, the Veteran reported right shoulder constant pain, weakness at rest, stiffness at rest, numbness, and popping. See, e.g., VA treatment record (December 2015). He stated that his right shoulder disability affects his daily activities, such as chores, driving, and exercise. See VA examination report (May 2010). He indicated that he had difficulty lifting and holding objects. See VA examination reports (June 2018; August 2019; August 2020). He stated that he had limited use of his right arm due to his right shoulder disability. Id. He reported that he was unable to raise his arm overhead. See VA examination report (August 2019). With respect to flare ups, during the May 2010, June 2012, June 2018, August 2019, and August 2020 VA examinations, he stated that he had right shoulder flare-ups. Specifically, he reported that he had flare ups occurring from 2 to 3 days a week or once or twice a week that last from twenty to thirty minutes. See VA examination reports (May 2010; June 2013; August 2019). He stated that flare ups occurred when he was driving. See VA examination report (May 2010). He rated his flare ups as a 7 and an 8 out of 10. See VA examination reports (May 2010; August 2019). He indicated that during flare ups he had increased pain; difficulty driving and holding objects; additional limitation of motion; burning sensations; stiffness; numbness; popping; and functional impairment. See VA examination reports (May 2010; June 2018). Upon physical examination, range of motion of the right shoulder during the May 2010 VA examination was recorded as flexion to 170 degrees with pain and abduction was to 180 degrees with pain. The examiner noted that the Veteran reported that he had additional limitation of motion of the right shoulder during flare ups. Range of motion of the right shoulder during the June 2012 and February 2016 VA examinations were recorded as flexion to 110 degrees with pain and abduction was to 110 degrees with pain. Range of motion of the right shoulder during the June 2018 VA examination was recorded as flexion to 160 degrees with pain and abduction was to 160 degrees with pain. The June 2018 VA examiner noted that the Veteran had pain avoidance, which prevented full range of motion and an inability to use the joint in a prolonged or repetitive manner. Range of motion of the right shoulder during the August 2019 VA examination was recorded as flexion to 30 degrees with pain and abduction was to 0 degrees with pain. The examiner noted that there was pain avoidance and that the Veteran was unable to perform repetitive-use testing due to pain. Range of motion during the August 2020 VA examination was recorded as flexion to 20 degrees with pain and abduction was to 40 degrees with pain. The examiner indicated that the Veteran was unable to perform repetitive-use testing. The examiner explained that the Veteran was able to perform flexion and abduction upon repetitive-use testing; however, he was unable to perform external rotation or internal rotation due to severe pain. There was no additional limitation of motion following repetitive-use testing during the May 2010, June 2012, February 2016, and June 2018 VA examinations. The June 2012, June 2018, and August 2019 VA examiners indicated that the Veteran had functional loss and/or functional impairment in terms of less movement than normal, weakened movement, and pain on movement. He had tenderness to palpation of the acromioclavicular joint. See VA examination reports (June 2018; August 2019; August 2020). The August 2019 and August 2020 VA examiners found that pain, weakness, fatigability, and incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time and that pain, weakness, fatigability, and incoordination significantly limited his functional ability with flare ups. The August 2019 VA examiner estimated that during periods of pain, weakness, fatigability, incoordination, and flare ups, the Veteran’s flexion would be limited to 30 degrees and abduction would be limited to 0 degrees. The August 2020 VA examiner estimated that during periods of pain, weakness, fatigability, incoordination, and flare ups, the Veteran’s flexion would be limited to 20 degrees and abduction would be limited to 35 degrees. The June 2018 and August 2020 VA examiners indicated that there was pain on passive range of motion testing and pain on non-weight bearing testing. The examiners indicated that there was no ankylosis or ankylosis or impairment of the humerus. The August 2019 VA examiner indicated that there was acromioclavicular separation or sternoclavicular dislocation. The June 2012, February 2016, June 2018, August 2019, and August 2020 VA examiners found that the Veteran’s right shoulder disability impacted his ability to work. The February 2016 VA examiner explained that the Veteran had difficulty gripping and holding objects due to his right shoulder disability and that he had to reschedule clients for handy man projects when he had right shoulder pain. The June 2018 VA examiner indicated that the Veteran would be unable to perform job duties that required heavy or repetitive or prolonged lifting, overhead work. The August 2019 VA examiner indicated that the Veteran would have difficulty lifting objects, unable to raise right arm overhead, and grab seat belt as it caused burning sensation. The August 2020 VA examiner indicated that the Veteran was unable to his right hand, in part due to his service-connected carpal tunnel. A rating higher than 20 percent prior to August 22, 2019, for the right shoulder disability For the following reasons, the Veteran’s right shoulder disability, the minor extremity, more nearly approximates limitation of motion to 25 degrees from side, considering his right shoulder flare-ups, pain, and functional impairment since the date of his claim for an increased rating on September 16, 2009. Throughout the appeal period, the Veteran report constant right shoulder pain and right shoulder flare ups that occurred at least once a week. As early as May 2010, the Veteran stated that during flare ups, he had increased pain and additional limitation of motion during flare ups. During the appeal period, he indicated that during flare ups, he had difficulty driving and holding objects, stiffness, and numbness. Notably, the VA examiners during the appeal periods indicated that the VA examinations were not conducted during a right shoulder flare up. The August 2019 and August 2020 VA examiners were the only examiners who provided estimated ranges of motion of the right shoulder during periods of pain, weakness, fatigability, flare ups, and other symptoms. The August 2019 and August 2020 VA examiners estimated that during periods of pain, weakness, fatigability, incoordination, and flare ups, the Veteran’s flexion would be limited to 30 degrees or 20 degrees and that abduction would be limited to 0 degrees and 35 degrees. As the other VA examiners were unable to provide estimated ranges of motion of the right shoulder during periods of pain, flare ups, and other symptoms, and that the Veteran reported that he had additional limitation of motion during flare ups, the above August 2019 and August 2020 range of motion findings will be applied throughout the appeal period. In sum, the evidence shows that during periods of pain, weakness, fatigability, incoordination, and flare ups, the Veteran’s flexion would be limited to 30 degrees or 20 degrees and abduction would be limited to 0 degrees or 35 degrees. Therefore, affording the Veteran the benefit of the doubt, his right shoulder disability from September 16, 2009 to August 21, 2019 more nearly approximates limitation of motion to 25 degrees to side. Accordingly, a 30 percent rating, the maximum schedular rating for the minor extremity under DC 5201, from September 16, 2009, to August 21, 2019, for the right shoulder disability is warranted. A rating higher than 30 percent for the right shoulder disability For the following reasons, a rating higher than 30 percent, throughout the appeal, period is not warranted. A 30 percent rating under DC 5201 is the highest schedular rating for the minor extremity. Therefore, the Veteran is in receipt of the highest schedular rating for the right shoulder disability of the minor extremity under DC 5201. There is no other diagnostic code pertaining to the right shoulder that would provide any higher disability rating. There is no evidence of ankylosis or impairment of the humerus as contemplated by DCs 5200 and 5202. Notably, the August 2019 VA examiner indicated that there was acromioclavicular separation or sternoclavicular dislocation. However, under DC 5203, the maximum rating for impairment of the scapula or clavicle is 20 percent and thus would not provide a basis for a higher rating. 38 C.F.R. § § 4.71a. The preponderance of the evidence is therefore against a rating higher than 30 percent for the right shoulder disability under DC 5201, and the benefit-of-the-doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND A rating higher than 10 percent prior to June 19, 2012, and higher than 20 percent since June 19, 2012, for a low back disability In January 2020, the Board remanded the Veteran’s claim of an increased rating for the low back disability, in part, for a VA examiner to determine whether he had radiculopathy and/or any other neurological manifestations due to his low back disability, as he reported radicular pain and had positive straight leg testing during the appeal period. In August 2020, the Veteran was afforded a VA back examination. Upon physical examination, the examiner indicated that the Veteran had positive straight leg test results, had signs and symptoms due to radiculopathy, and had mild intermittent pain of the femoral nerve. In an August 2020 addendum opinion, the examiner indicated Veteran had lumbosacral pain with mild neurologic deficits and that he may have spinal stenosis. The examiner concluded that there were no recent studies available. In a September 2020 addendum opinion, the examiner stated that he was unable to determine whether the Veteran had radiculopathy of the lower extremities associated with low back disability. The examiner explained that he did not find recent studies of the low back, such as a MRI, that “would be of benefit” and that the Veteran may have spinal stenosis or other low back “issues.” The Board finds that the August 2020 VA examiner’s findings were inconsistent and unclear, as the examiner appeared to find that the Veteran had radiculopathy of the lower extremities due to his low back disability upon physical examination, but in the addendum opinions, the examiner was unable to state whether the Veteran had current radiculopathy and whether it was due to his service-connected low back low back disability. Therefore, a remand is necessary for a VA examiner to whether the Veteran has or had radiculopathy and/or any other neurological manifestations due to his low back disability. TDIU A decision on the issue of higher ratings for the low back disability that are remanded herein could significantly impact a decision on the issue of a TDIU; therefore, the issues are inextricably intertwined. Accordingly, the issue of a TDIU is remanded pending adjudication of the inextricably intertwined issue. The matters are REMANDED for the following action: Refer the claims file to a VA examiner for an opinion regarding the Veteran’s service-connected back disability. If the examiner finds that a new VA examination must be held prior to providing an opinion, schedule such an examination. If feasible, the examination may be held via telehealth during social distancing restrictions, and an opinion can be provided based on other medical evidence of record. After a review of the claims file, the VA examiner should provide an opinion as to whether the Veteran has or had radiculopathy and/or any other neurological manifestations due to his low back disability during the appeal period. The examiner should identify when these manifestations began and the evidence that demonstrates their severity. The examiner should specifically address the August 2020 VA examination report that shows that the Veteran had mild intermittent pain of the femoral nerve. A complete and fully explanatory rationale must be provided for any opinion offered.  If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. Mary Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.