Citation Nr: 21026146 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-27 097 DATE: April 29, 2021 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to a rating in excess of 20 percent for cervical spine strain with degenerative changes is remanded. Entitlement to a rating in excess of 40 percent for thoracolumbar spine strain, sacral strain with degenerative arthritis, status post spinal fusion with asymptomatic surgical scar is remanded. Propriety of the assignment of a separate rating assigned for left upper extremity radiculopathy, evaluated as 20 percent disabling as of September 17, 2010, is remanded. Propriety of the assignment of a separate rating assigned for right upper extremity radiculopathy, evaluated as 20 percent disabling as of September 17, 2010, is remanded. Propriety of the assignment of a separate rating assigned for left lower extremity radiculopathy, evaluated as 20 percent disabling as of September 17, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1985 to August 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2018, the Board remanded the issues of entitlement to service connection for right and left shoulder disorders and erectile dysfunction, and increased ratings for cervical spine strain, thoracic spine strain, and degenerative disc disease, L3-4 and L5-S1 with subjective sciatica of the left lower extremity for further development. While on remand, a September 2018 rating decision awarded separate ratings for radiculopathy of the right and left upper extremities associated with the Veteran’s cervical spine disability, each evaluated as 20 percent disabling as of May 2, 2018. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) recharacterized the Veteran’s lumbar and thoracic spine disabilities as thoracolumbar spine strain, sacral strain with degenerative arthritis, status post spinal fusion with asymptomatic surgical scar, and assigned a 40 percent rating as of September 17, 2010, the date of receipt of his claim for an increased rating. Such rating decision also awarded an increased rating of 20 percent for the Veteran’s cervical spine strain with degenerative changes as of September 17, 2010; a separate rating for radiculopathy of the left lower extremity associated with the Veteran’s thoracolumbar spine disability (which had previously been rated with such disability), evaluated as 20 percent disabling as of September 17, 2010; an earlier effective date of September 17, 2010, for the assignment of the separate ratings for the Veteran’s radiculopathy of the bilateral upper extremities; and service connection for erectile dysfunction. As the award of service connection for erectile dysfunction is a full grant of the benefit sought on appeal with respect to such claim, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). However, the Board will consider the propriety of the separately assigned ratings for radiculopathy of the bilateral upper extremities and left lower extremity as such are part and parcel of the Veteran’s claims for increased ratings for his cervical and thoracolumbar spine disabilities. See General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), Note (1); Chavis v. McDonough, No. 18-2928 (Vet. App. Apr.16, 2021). Furthermore, as the award of 20 and 40 percent ratings for the Veteran’s cervical and thoracolumbar spine disabilities, respectively, are not the maximum ratings available for such disabilities and the Veteran is presumed to seek the maximum available benefit for a disability such claims remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The case now returns for further appellate review 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a right shoulder disorder. As noted in the July 2018 remand, the Veteran contends that his current bilateral shoulder disorder is related to the training and job duties he performed during his military service. Specifically, he reported that as a medic, he underwent constant training and lifting patients, to include weight training. Here, the Veteran reported that there were many exercises he performed that he now knows were improper, to include neck shoulder presses. The Veteran indicated that he noticed that his shoulders began hurting in the late 1980s after he had been lifting for several years. He further indicated that he sought medical attention for such pain while in service and has continued to the present time. The Veteran noted that, as he worked in the medical community, he believed that his colleagues found it easiest to write “follow-up for pain” without indicating which body part as he often saw them with complaints referable to his shoulders, elbows, and back. At such time, the Board observed that, while the Veteran’s service treatment records (STRs) are negative for complaints, treatment, or diagnoses referable to a bilateral shoulder disorder, his DD Form 214 confirmed that his military occupational specialty (MOS)was Medical Services Journeyman. Further, it was noted that his post-service VA treatment records reflect complaints of chronic right shoulder pain beginning in June 2003, and, since such time, he has been diagnosed with probable chronic rotator cuff tendonitis, left acromioclavicular (AC) joint inflammation, bilateral AC joint inflammation, and moderate AC and mild glenohumeral osteoarthrosis of the left shoulder. See June 2003, April 2004, September 2009, August 2009, January 2010, and March 2018 VA treatment records. Thus, in light of evidence of a current diagnosis of a bilateral shoulder disorder, the Veteran’s statements regarding his in-service training and occupation-related duties consistent with his MOS, and his report of a continuity of shoulder symptomatology, the Board remanded the claim in order to afford him a VA examination so as to determine the nature and etiology of his bilateral shoulder disorder. At a July 2019 VA examination, left shoulder impingement syndrome, rotator cuff tendonitis, and labral tear (including superior labral anterior-posterior lesion (SLAP)) of the left shoulder, and glenohumeral joint osteoarthritis and AC osteoarthritis of the bilateral shoulders was diagnosed. However, following a review of the record, an interview with the Veteran, and a physical examination, the examiner opined that such bilateral shoulder disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of such opinion, he reported that the Veteran’s STRs were void of shoulder complaints, and his post-service treatment records reflected the first complaint related to his shoulders was in 2009, 11 years after separation, and his examination and X-ray were normal. Thereafter, in 2017, he reported left shoulder pain that started two months previously and denied any known injury at the time, and imaging revealed a torn labrum and arthritis. The examiner further observed that his VA treatment records never showed any report of military-related shoulder issues, his job in service was not physical in nature as he did mostly clerical work in medical clinics, and while he lifted weights a lot, such never resulted in any shoulder complaints. Thus, he found there was no objective evidence to support a finding that the Veteran’s current shoulder disorders were related to his military service, and such were first diagnosed 17 years after separation. However, the Board finds that July 2019 VA examiner’s opinion was based on an inaccurate factual premise and did not consider all evidence of record. In this regard, as noted above, the Veteran’s VA treatment records document complaints of right shoulder pain as far back as June 2003. Furthermore, at the August 2017 Board hearing, the Veteran reported seeking treatment for shoulder pain from a private chiropractor as soon as he had private health insurance, which was about six months after separation from service. While the Veteran has not submitted, or authorized VA to obtain such records, he is competent to report such treatment. Further, he has alleged that his bilateral shoulder symptomatology had its onset in service, and has been present since such time. Accordingly, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing VA treatment records reflecting relevant complaints as early as June 2003, and the Veteran’s reports of the onset of his shoulder symptomatology in service, which continued thereafter. 3. Entitlement to a rating in excess of 20 percent for cervical spine strain with degenerative changes. 4. Entitlement to a rating in excess of 40 percent for thoracolumbar spine strain, sacral strain with degenerative arthritis, status post spinal fusion with asymptomatic surgical scar. 5. Propriety of the assignment of a separate rating assigned for left upper extremity radiculopathy, evaluated as 20 percent disabling as of September 17, 2010. 6. Propriety of the assignment of a separate rating assigned for right upper extremity radiculopathy, evaluated as 20 percent disabling as of September 17, 2010. 7. Propriety of the assignment of a separate rating assigned for left lower extremity radiculopathy, evaluated as 20 percent disabling as of September 17, 2010. In the July 2018 remand, the Board directed that the Veteran be afforded contemporaneous VA examinations so as to determine the nature and severity of his cervical and thoracolumbar spine disabilities, which includes his associated radiculopathy. As relevant, the Board directed that the examiner review the December 2010 VA examination containing range of motion findings pertinent to such disabilities and offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If he or she was unable to do so, he or she was directed to explain why. The examiners were further instructed to comment on functional limitations caused by flare-ups and repetitive use, indicating the additional limitation on range of motion in terms of degrees. If such measurement or estimation in terms of degrees was not possible, the he or she was instructed to explain why. Thereafter, the Veteran was afforded VA examinations for his cervical and thoracolumbar spine disabilities in August 2018 and July 2019; however, the examiner did not provide the requested retrospective opinion. Furthermore, the examiners did not comment on functional limitations caused by flare-ups, indicating the additional limitation on range of motion in terms of degrees, for the Veteran’s cervical spine disability. In this regard, the August 2018 and July 2019 examiners found that the Veteran’s functional ability was limited by pain in his neck during flare-ups; however, they found that the decrease in functional capacity was “variable” and/or did not estimate at what point such pain begins or the impact in terms of limitation of range of motion, or indicate why such could not be determined. Therefore, another remand is necessary in order to obtain an addendum opinion that complies with the July 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Return the record, to include a copy of this remand, to the examiner who conducted the Veteran’s July 2019 examination and offered the opinion addressing the etiology of the Veteran’s bilateral shoulder disorder for an addendum opinion. If he is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, the examiner should offer an opinion as to whether a right and/or left shoulder disorder, diagnosed as left shoulder impingement syndrome, rotator cuff tendonitis, and labral tear (including SLAP) of the left shoulder, and glenohumeral joint osteoarthritis and AC osteoarthritis of the bilateral shoulders, had its onset in, or is otherwise related to, his military service, to include his in-service training and occupation-related duties as a Medical Services Journeyman. In offering such opinion, the examiner should consider and discuss the Veteran’s report of the onset of bilateral shoulder symptoms in service that have continued to the present time, and his VA treatment records that reflect a report of chronic right shoulder pain as early as June 2003. A rationale for any opinion offered should be provided. 2. Return the record, to include a copy of this remand, to the VA examiner who conducted the July 2019 examinations addressing the severity of the Veteran’s cervical and thoracolumbar spine disabilities to obtain an addendum opinion. (A) The examiner is requested to review the December 2010 VA examination containing range of motion findings pertinent to the Veteran’s cervical and thoracolumbar spine disabilities, and offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. (B) The examiner should review the August 2018 and July 2019 VA examination reports regarding the Veteran’s reported flare-ups of his cervical spine disability, to include the frequency, duration, characteristics, severity, and/or functional loss, and comment on the functional limitations caused by flare-ups. In this regard, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide the foregoing opinions without resorting to mere speculation, s/he must make clear that s/he has considered all procurable data, but any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.