Citation Nr: 21025345 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-42 416 DATE: April 27, 2021 ORDER Beginning November 29, 2018, entitlement to a disability rating in excess of 20 percent for service-connected right shoulder disability is denied. REMAND Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT Beginning November 29, 2018, the Veteran’s service-connected right shoulder disability does not manifest limitation of flexion or abduction to at least 45 degrees. CONCLUSION OF LAW Beginning November 29, 2018, the criteria for entitlement to a disability rating in excess of 20 percent for service-connected right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to August 1984 and October 1990 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A Board hearing was conducted via videoconference with the RO in Lincoln, Nebraska. A transcript of this hearing is contained within the electronic claims file. These claims previously were the subject of an August 2020 Board decision. The instructions pertaining to GERD will be discussed in the remand portion below. As to the right shoulder, the Board denied an increase in excess of 10 percent for the right shoulder disability, prior to November 28, 2018, and remanded in excess thereafter so that VA could afford the Veteran an updated examination, as he testified that his condition had worsened since his last examination. VA afforded the Veteran an examination in November 2020. In January 2021, VA issued a rating decision, grating the Veteran a 20 percent disability rating effective September 30, 2015—the date VA received his notice of disagreement (NOD). This, of course, has created a jurisdictional anomaly. Board decisions are considered final as of the mailing date stamped on the decision. 38 C.F.R. § 20.1100. The prior decision was stamped with a date of August 25, 2020, and the Veteran had 120 days to appeal any portion of that decision to the United States Court of Appeals for Veterans Claims (CAVC). See 38 U.S.C. § 7266(a). No such appeal was filed. The Board’s jurisdiction encompasses appeals of decisions by the RO, see 38 U.S.C. § 7104(a), as well as its ability to vacate or modify its own prior decisions, either sua sponte or on motion by an appellant. See 38 C.F.R. §§ 20.1000 (vacatur), 20.1001 (reconsideration), 20.1400 (clear and unmistakable error (CUE)). The Board previously denied a rating in excess of 10 percent prior to November 29, 2018. Thus, it no longer has jurisdiction over that time period, and it does not believe that vacutur, reconsideration, or modification based on CUE is appropriate; the Board believes a rating in excess of 10 percent prior to that date is not warranted, so it stands by that determination. By increasing the Veteran’s rating to 20 percent prior to November 29, 2018, VA acted ultra vires, as it had no jurisdiction or authority over that time period in light of the finality of the Board decision. While the Board has no jurisdiction over an unappealed rating decision, VA nevertheless may choose to correct its mistake upon a finding of CUE. See 38 C.F.R. § 3.105(a)(1). Thus, the issue now before the Board is entitlement to a disability rating in excess of 20 percent beginning November 29, 2018. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s right shoulder condition is rated under DC 5201. Under DC 5201, limitation of motion of the arm to 25 degrees from the side is rated as 40 percent disabling for the dominant arm and 30 percent disabling for the nondominant arm. Midway between the side and shoulder level warrants a 30 percent rating for the dominant arm and 20 percent for the nondominant arm. Limitation of motion to the shoulder level warrants a 20 percent disability rating for either arm. Plate I shows that normal range of motion for shoulder flexion and abduction is 0–180 degrees, and external and internal rotation is 0–90 degrees. Shoulder level for both flexion and abduction is the 90 degree mark, while shoulder level for external and internal rotation is 0 degrees. Notably, DC 5201 does not provide separate ratings for limitations on flexion, extension, abduction, and rotation; rather, DC 5201 permits only a single rating for limitation of motion of an arm. Yonek v. Shinseki, 722 F.3d 1355, 1359 (Fed. Cir. 2013). The Board notes that, during the pendency of this appeal, VA has amended the rating criteria for the musculoskeletal system contained in 38 C.F.R. § 4.71a. These changes take effect February 7, 2021, and cannot be applied prior to that date. Beginning that date, however, the Board will apply the rating criteria that is more favorable to the Veteran: either the old or the new criteria. 85 Fed. Reg. 76,453, 76,469 (Nov. 30, 2020). The new criteria simply clarify three points regarding what the old criteria meant in discussing its ranges of motion: (1) Under DC 5201, limitation of motion midway between side and shoulder level means flexion and/or abduction limited to 45 degrees; (2) Under DC 5201, limitation of motion at shoulder level means flexion and/or abduction limited to 90 degrees; and (3) Under DC 5202, recurrent dislocation of the shoulder at the scapulohumeral joint with infrequent episodes and guarding movement only at shoulder level means flexion and/or abduction limited to 90 degrees. Other than these clarifications, there are no substantive changes to the rating criteria for the shoulders. Id. at 76,462. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran’s symptoms are most prevalent (“flare-ups”) due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204–07 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. At his hearing, the Veteran testified that he has switched jobs from a lineman (construction maintenance) to working in a fabrication shop where he avoids overhead work due to pain. The Veteran’s shoulder pain prevents him from sleeping on his right side and takes Motrin before bed. The Veteran has undergone physical therapy and cortisone shots. The Veteran noted that he can raise his arm above his shoulder but that it gets to a point where there is pain. Raising his arm to engage in throwing motions also causes pain. November 29, 2018, Hearing Transcript (Tr.) at 3–6. A November 2020 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report noted that the Veteran is right-hand dominant. The Veteran reported flare-ups, which occur once a week precipitated by repetitive motion and lifting overhead; the associated pain is moderate–severe and lasts less than one day. Ice, rest, and ibuprofen alleviate these flare-ups. The Veteran characterized his functional loss as hardly being able to lift his arm above shoulder level for any length of time. Initial ranges of motion were as follows: flexion 0–115 degrees; abduction: 0–110 degrees; external rotation: 0–55 degrees; and internal rotation: 0–60 degrees. There was pain noted for all ranges of motion, pain on weight bearing, crepitus, and moderate right superior shoulder tenderness. The Veteran was able to perform repetitive-use testing without additional loss of range of motion. The Veteran was not observed immediately after repeated use over time, but the examiner noted that pain, fatigue, and lack of endurance all would contribute to functional loss and would be reduce range of motion to the following: flexion: 0–105 degrees; abduction: 0–100 degrees; external rotation: 0–45 degrees; and internal rotation: 0–60 degrees. The same limitations would be present during a flare-up. Muscle strength was 4/5, but there was no muscle atrophy or ankylosis. The report indicates that, for the rotator cuff, the right shoulder tested positive for the Hawkin’s Impingement Test, Empty-can Test, External Rotation/Infrapsinatus Strength Test, and the Lift-off Subscapularis Test. As it pertains to shoulder instability, dislocation, or labral pathology, the right shoulder tested positive on the Crank Apprehension and Relocation Test. There was tenderness on palpation of the acromioclavicular (AC) joint, and the Veteran tested positive for the Cross-body adduction test. Degenerative arthritis also was confirmed. With regards to functional impact, the examiner noted that the Veteran is unable to lift overhead, hold his arms above shoulder level, and engage in repetitive motions. Evaluating the evidence since November 29, 2018, the Board does not find that an increase in excess of 20 percent is warranted. To qualify for a rating in excess of 20 percent, the Veteran’s right shoulder needs to exhibit limited flexion or abduction to at least 45 degrees. The November 2020 VA examination shows that, at worst, the Veteran’s flexion and abduction are limited to 105 and 100 degrees, respectively. These are the limitations provided by the examiner account for the additional loss of range of motion that the Veteran would experience either due to a flare-up or after repetitive use. Thus, the Board is satisfied that the Veteran’s functional loss adequately has been captured by his current 20 percent rating, and his appeal on this issue is denied. See DeLuca, 8 Vet. App. at 204–07; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5201. The Board also has considered the applicability of other DCs for the Veteran’s right shoulder; however, there is no other noted condition for which the Veteran may receive compensation. REASONS FOR REMAND If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, the Board shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 20.904(a). When there exists a remand, from either the United States Court of Appeals for Veterans Claims (Court) or the Board, a veteran is entitled to substantial compliance with those remand directives. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded the issue of entitlement to service connection for GERD so that VA could obtain an etiological opinion on a direct basis. The Board instructed VA to ensure that the opinion obtained specifically responded to a prior January 2019 medical opinion submitted by the Veteran’s private physician, Dr. J.S. In a December 2020 addendum, the examiner stated, in pertinent part, the following: [O]n review of medical records, there were no STRs available supporting if claimant complained of or was evaluated or treated for symptoms related to GERD condition. 3. Report of medical history dated 3/30/1991 [for the purpose of demobilization] was reviewed. It was noted that claimant checked ‘‘NO” to “frequent indigestion’’ and examiner [did not] indicate if claimant carries the diagnosis of GERD. On review of medical records, there were no VA medical records or private medical records available regarding claimant symptoms or diagnosis of GERD until 2010/2011 [which is about 20 yrs after the claimant was discharged from the military service]. It was noted that claimant underwent upper endoscopy in and around 2011 and was diagnosed with GERD and has been on medications since then. It determines or suggests that claimant’s current diagnosis of GERD is not caused by or related to his period of active duty service, to include as due to exposure to burn pits, and as evidenced by allegations of in-service heartburn and indigestion. While VA listed Dr. J.S.’s opinion in the evidence review section, the examiner makes no mention of it in his supporting rationale and does not discuss why he comes to a contrary conclusion. The Board was quite clear in its prior remand: “The examiner specifically must respond to Dr. J.S.’s January 2019 opinion.” August 25, 2020, Board Decision (emphasis added). Merely listing evidence as “reviewed” is not the same as responding to a piece of evidence. Respond means “to say something in return”; “make an answer”; or “to react in response.” Respond, MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003). The December 2020 examiner did not do so. Thus, VA did not ensure compliance with the Board’s prior instructions, so remand is required to correct that defect. See Stegall, 11 Vet. App. at 271; 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Obtain an addendum to the December 2020 opinion. The addendum shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s GERD occurred in, or is the result of, his period of active duty service, to include as due to exposure to burn pits, and as evidenced by allegations of in-service heartburn and indigestion? If the examiner believes that GERD is not related to the Veteran’s service, then the examiner specifically must respond to Dr. J.S.’s January 2019 opinion and state why he or she reaches the opposite conclusion and believes Dr. J.S. to reach an incorrect conclusion. Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.