Citation Nr: 21026697 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 08-25 585 DATE: May 3, 2021 REMANDED Entitlement to an increased disability rating for a service-connected right shoulder disability based on impairment other than limitation of motion is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1986 to June 1993. This appeal has a long procedural history, initially coming to the Board from a December 2005 decision of the Agency of Original Jurisdiction (AOJ). The Board denied a rating higher than 20 percent for a service-connected right shoulder disability in November 2014 but, after further proceedings, the United States Court of Appeals for Veterans Claims (Court) issued a memorandum decision in March 2016, which vacated the November 2014 Board decision. In August 2017, the Board organized the right shoulder increased rating claim into two parts: (1) whether the Veteran was eligible for an increased rating for his right shoulder based on limitation of motion; and (2) whether he was eligible for an increased rating based on impairment other than limitation of motion. In an August 2017 decision and remand, the Board increased the right shoulder rating based on limitation of motion from 20 percent to 30 percent, effective December 27, 2016, but denied a rating higher than 20 percent prior to that date. The issue of an increased rating based on impairment other than limitation of motion was remanded to the AOJ for further development. Once again, the Veteran appealed the unfavorable portion of the Board's decision to the Court. In May 2018, counsel for both parties filed a Joint Motion for Partial Remand (JMR). The parties agreed that, in its August 2017 decision, the Board erred by failing to adequately explain the reasons for its denial of a rating higher than 20 percent for the period prior to December 27, 2016. By granting the JMR, the Court vacated the unfavorable portion of the August 2017 decision and returned the issue of an increased rating for a right shoulder disability based on limitation of motion prior to December 27, 2016 to the Board. In January 2019, the Board issued another decision denying a rating higher than 20 percent for the period prior to December 27, 2016. Based on a review of the Court's website, it appears that, unlike the November 2014 and August 2017 decision, the Veteran did not appeal this ruling to the Court. According to the January 2019 decision, "The Board makes no determination about whether a separate rating is warranted for his right shoulder disability on a basis other than limitation of motion. This matter is pending development and adjudication by the [AOJ]." Thus, the claim for an increased rating based on impairment other than limitation of motion is the sole remaining issue in this appeal. In November 2011 a hearing was held before the undersigned Veterans Law Judge (VLJ) Senyk, and in February 2020, a second hearing was held before the undersigned VLJ Wight. Transcripts of both hearings have been associated with the claims file. Because every VLJ who conducts a hearing on the same issue must participate in the decision, and appeals may be assigned only to a single VLJ or a panel of at least three members, the fact that he testified about the same issue in two different hearings gave the Veteran a right to yet another hearing before a third VLJ. See 38 U.S.C. § 7102; 38 C.F.R. § 20.707 (2017); Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Board mailed a letter to the Veteran in June 2020 informing him of his right to another hearing before a third VLJ. In July 2020 he repliedresponded indicating that he waived his right to another hearing. Thus, this appeal may proceed without a third hearing. During his second hearing, in February 2020, the Veteran testified testified that the condition of his right shoulder had "definitely worsened" since his previous VA shoulder examination. Based on this testimony, the Board remanded remandedthe case to the AOJ for a new examination in July 2020. See Olson v. Principi, 3 Vet. App. 480, 482 (1992). Although the further delay is regrettable, a new examination is necessary before the Board can decide whether the Veteran is eligible for an increased rating for his right shoulder disability based on impairment other than limitation of motion. The most recent VA shoulder examinationreport, in December 2020, confirmed the Veteran's reports of muscle atrophy. On part IV of the report, the examiner noted a reduction of muscle strength in the right shoulder during both forward flexion and abduction. In the examiner's opinion, this reduction in strength was entirely due to the service-connected shoulder disability. The examiner identified the site of the atrophy as ten centimeters above the elbow and measured the circumference of the normal (left) side as 44.5 centimeters while the atrophied (right) side measured 42 centimeters. The presence of muscle atrophy does not necessarily mean that the Veteran is entitled to an increased rating. In granting a 30 percent rating for the right shoulder, the Board applied 38 C.F.R. § 4.45(c), which requires the factfinder to consider limits in the normal function of joints due to, "Weakened movement (due to muscle injury, disease or injury of the peripheral nerves, divided or lengthened tendons, etc.) and subsection (f) of the same regulation, which requires consideration of "Pain on movement, swelling, deformity or atrophy of disuse." When a VA adjudicator assigns a rating for a musculoskeletal disability applying 38 C.F.R. §§ 4.40, 4.45, and 4.59, the adjudicator typically seeks an opinion expressing these functional limits in terms of degrees of reduced motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 33 (2011). Because functional limits due to pain and weakness from muscle atrophy are often expressed in these terms, symptoms of muscle atrophy are often contemplated by a disability rating under a diagnostic code based on limited motion. Whether a separate rating is appropriate under a diagnostic code for muscle injuries under 38 C.F.R. § 4.73 seems to depend on the facts of the individual case. In one memorandum decision, the Court vacated a Board decision for failing to explain why the appellant was not assigned simultaneous ratings for limited motion of the shoulder under 38 C.F.R. § 4.71a, DC 5201 and 38 C.F.R. § 4.73, DC 5303 (injury to muscle group III). See Jones v. McDonald, No. 14-2368, 2015 U.S. App. Vet. Claims LEXIS 1537, at *5-6 (November 10, 2015). In its August 2017 decision and remand, the Board increased the rating for the Veteran's right shoulder based on limited motion from 20 percent to 30 percent based on a December 2016 examination report, which found that, although the range of motion in the right shoulder was not limited to 25 degrees from the side, painful motion prevented the Veteran from performing repetitive use testing of his right shoulder. In part 3 of the December 2020 examination questionnaire, the examiner indicated that pain caused further limited motion during flare-ups. But the examiner did not mark the box next to pre-printed text indicating that weakness was responsible for reduced range of motion. Under these circumstances, it is not clear that the 30 percent rating previously assigned for limited motion of the right shoulder compensates the Veteran for muscle weakness due to atrophy. The Board has considered attempting to use the information in the December 2020 report to assign a separate rating for muscle atrophy by analogy to one of the diagnostic codes in 38 C.F.R. § 4.73 for muscle injury. Unfortunately, 38 C.F.R. § 4.73 authorizes ratings under four separate diagnostic codes for four different muscle groups of the shoulder, DCs 5301, 5302, 5303, and 5304. The rating criteria describe the shoulder movements affected by each of these muscle groups, which means that, if the symptoms described in the December 2020 report included pain and weakness in only one identified motion, it might be possible for the Board to identify the correct muscle group based on the currently available information. But the December 2020 report indicates reduced motion with all four movements (flexion, abduction, external rotation, and internal rotation) and reduced muscle strength in both flexion and abduction. The report also does not indicate whether the Veteran's muscle atrophy is associated with the cardinal signs and symptoms of muscle disability described in 38 C.F.R. § 4.56. For these reasons, the Board will remand the Veteran's increased rating claim for a new examination. The matter is REMANDED for the following action: 1. Obtain copies of any of the Veteran's outstanding VA treatment records [for shoulder disability] since August 2020. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right shoulder disability. All appropriate tests and studies should be performed. The examiner should complete a standard VA muscle injuries examination questionnaire and identify the specific muscle group affected by the muscle atrophy described in the December 2020 shoulder and arm questionnaire. The examiner should indicate whether the Veteran's service-connected right shoulder impingement syndrome is manifested by any symptoms or functional impairment other than limitation of motion, including neurological impairment or instability of the right shoulder. If the examiner indicates that the symptoms of the shoulder disability include neurological impairment, he or she should also complete a standard VA peripheral nerves examination questionnaire. 3. Review the examination reports requested in these instructions and ensure that they comply with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.