Citation Nr: 21027313
Decision Date: 05/05/21	Archive Date: 05/05/21

DOCKET NO. 96-43 388
DATE: May 5, 2021

ORDER

Entitlement to an increased rating in excess of 40 percent for cervical spine degenerative arthritis disability on an extra-schedular basis is denied.

Entitlement to a compensable rating for postoperative left shoulder scar disability on an extra-schedular basis is denied.

Entitlement to special monthly compensation (SMC) based on regular need of aid and attendance (A&A) is denied. 

REMANDED

Entitlement to a rating in excess of 20 percent from July 8, 2001 to January 14, 2004 for left shoulder disability is remanded.

Entitlement to a total disability rating due to individual unemployability (TDIU) prior to January 14, 2004 is remanded.

Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is remanded.

FINDINGS OF FACT

1.  The Veteran's signs and symptoms due to his cervical spine degenerative arthritis disability are contemplated by the schedular ratings and have not been shown to be so exceptional or unusual as to render the application of the regular rating standards impractical. 

2.  The Veteran's signs and symptoms due to his postoperative left shoulder scar disability are contemplated by the schedular ratings and have not been shown to be so exceptional or unusual as to render the application of the regular rating standards impractical.  

3.  The Veteran did not suffer the anatomical loss or loss of use of both feet or one hand and one foot, was not service-connected for blindness in both eyes and was not permanently bedridden due to service-connected disability.

4.  The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities required he have assistance in accomplishing the activities of daily living, and that he was unable to protect himself from the hazards and dangers of his daily environment. 

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 40 percent for cervical spine degenerative arthritis, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 (b)(1), are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321.

2.  The criteria for a compensable rating for postoperative left shoulder scar, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 (b)(1), are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321.

3. The criteria for an award of SMC based on A&A are not met.  38 U.S.C. §§ 1114 (l), 5107; 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from October 1950 to September 1950.  He died in December 2011 and the appellant is his surviving spouse.

This appeal to the Board of Veterans' Appeals (Board) arose from multiple rating decisions.

By way of procedural history, in a May 1996 rating decision, the RO in Atlanta, Georgia denied a rating in excess of 20 percent for the Veteran's cervical spine disability and a compensable rating for his scar disability. In June 1996, the Veteran filed a timely notice of disagreement (NOD) with respect to those issues. In June 1996, a statement of the case (SOC) was issued and the Veteran perfected an appeal (via VA Form 9, Appeal to the Board of Veterans' Appeals) in September 1996.

In an October 1998 rating decision, the Atlanta RO awarded a 40 percent rating for the cervical spine disability, effective June 26, 1995. Later that month, a supplemental SOC (SSOC) regarding the increased rating claims for a cervical spine and scar disabilities was issued. In May 2002, another SSOC regarding those claims was issued.

In July 2003, the Board remanded the issues of increased ratings for a cervical spine disability and a scar to the agency of original jurisdiction (AOJ) for further development. After accomplishing further action, the AOJ continued to deny the claims (as reflected in March 2004 and January 2005 SSOCs) and returned these matters to the Board for further appellate consideration.

In a July 2005 decision, the Board denied a compensable rating for the scar disability and remanded the cervical spine disability claim again for further development. In addition, the Board remanded the issue of entitlement to a TDIU for the issuance of a SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).

The Veteran appealed the Board's denial of a compensable rating for the scar disability to the United States Court of Appeals for Veterans Claims (Court). In October 2006, the Court granted a Joint Motion filed by counsel for the Veteran and the VA Secretary, setting aside the Board's July 2005 denial of a compensable rating for the scar disability. In December 2006, the Board remanded the claim for a compensable rating for a scar disability to the AOJ for further development, pursuant to the instructions of the Joint Motion. After accomplishing further action, the AOJ continued to deny both a compensable rating for the scar and a rating in excess of 40 percent for the cervical spine disability (as reflected in November 2007 and October 2008 SSOCs) and returned these matters to the Board for further appellate consideration.

In a November 2007 rating decision, the RO in Nashville, Tennessee granted service connection for the left shoulder disability and assigned a noncompensable rating, effective August 31, 1995, a 10 percent rating, effective November 27, 1996, and an 80 percent rating, effective January 14, 2004. Additionally, the RO granted a TDIU, effective January 14, 2004. In May 2008, the Veteran timely filed an NOD with respect to a higher rating for the shoulder disability prior to January 14, 2004 (the period prior to the 80 percent rating) and an earlier effective date for the award of a TDIU. In October 2008, a statement of the case (SOC) was issued and the Veteran perfected an appeal (via VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2008.

In a March 2009 SSOC, the AOJ continued to deny increased ratings for the left shoulder disability, the cervical spine disability and the scar disability, and also denied an earlier effective date for the award of a TDIU. In a May 2009 decision, the Board denied increased ratings for the cervical spine and scar disabilities on schedular bases, and remanded the claims for an increased rating for the left shoulder disability and an earlier effective date for the award of a TDIU.

In an April 2010 decision, the Board denied an increased rating for a left shoulder disability, and remanded claims for extra-schedular ratings for the cervical spine and scar disabilities, and the claim for an earlier effective date for the award of a TDIU. After accomplishing further action, the AOJ continued to deny extra-schedular ratings for the scar and cervical spine disabilities and an earlier effective date for the award of a TDIU (as reflected in an October 2010 SSOC) and returned these matters to the Board for further appellate consideration.

The Veteran appealed the Board's denial of an increased rating for the left shoulder disability to the Court. In July 2011, the Court granted a Joint Motion filed by counsel for the Veteran and the VA Secretary, setting aside the Board's April 2010 denial of a rating in excess of 10 percent for the period from July 8, 2011, to January 14, 2004 for the left shoulder disability.

In a February 2012 decision, the Board dismissed the claims for extra-schedular ratings for the cervical spine and scar disabilities, a rating in excess of 10 percent for the period from July 8, 2011, to January 14, 2004 for the left shoulder disability, and an earlier effective date for the award of a TDIU, due to the death of the Veteran. Thereafter, pursuant to 38 U.S.C. § 5121A , the Veteran's spouse was substituted as the appellant for the purpose of processing the Veteran's claims to completion. See Breedlove v. Shinseki, 24 Vet. App. 7 (2010) (holding that when an appellant dies during the course of an appeal to the Court, substitution may be appropriate if the moving party would be eligible to receive accrued benefits based upon the appeal).

In a November 2012 decision, the Board denied extra-schedular ratings for the cervical spine and scar disabilities, and remanded the claims for an increased rating for the left shoulder disability and an earlier effective date for the award of a TDIU. The Veteran appealed the Board's denial of extra schedular ratings for the cervical spine and scar disabilities to the Court. In June 2013, the Court granted a Joint Motion filed by counsel for the Veteran and the VA Secretary, setting aside the Board's November 2012 denial of extra-schedular ratings for the scar and cervical spine disabilities. In June 2014, the Board remanded those claims to the AOJ for further development, pursuant to the instructions of the Joint Motion. After accomplishing further action, the AOJ continued to deny extra-schedular ratings for the scar and cervical spine disabilities, an increased rating for the left shoulder disability and an earlier effective date for the award of a TDIU (as reflected in a September 2014 SSOC) and returned these matters to the Board for further appellate consideration.

In July 2015, the Board again remanded the claims for extra-schedular ratings for the scar and cervical spine disabilities, an increased rating for the left shoulder disability, and an earlier effective date for the award of a TDIU to the AOJ for further development. Additionally, a claim for accrued benefits was remanded for issuance of an SOC, pursuant to Manlincon, supra. After accomplishing further action, the AOJ continued to the other matters on appeal (as reflected in a June 2016 SSOC) and returned these matters to the Board for further appellate consideration.

A June 2016 SOC continued the denial of accrued benefits and the appellant perfected an appeal (via VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2016.

In a June 2016 rating decision, service connection for cause of death was denied. While an October 2016 SOC addressed service connection for cause of death, subsequent substantive appeals (VA Form 9) have made clear that the appellant was not seeking to perfect an appeal of that issue. Likewise, written arguments from the appellant's attorney have not addressed that issue. In any event, the appellant did not perfect an appeal of the issue of service connection for cause of death and it is not before the Board.

In an October 2016 rating decision, an increased, 20 percent rating was granted for the period from July 8, 2001, to January 14, 2004, which is on appeal, as discussed above. As a higher rating is assignable for the period on appeal, the claim for a higher rating remains viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 was denied. In November 2016, the appellant submitted an NOD with respect to the 38 U.S.C. § 1318 claim. A November 2016 SOC continued the denial of DIC compensation under 38 U.S.C. § 1318 and appellant perfected an appeal (via VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2016.

In a July 2017 decision, the Board denied all the issues on appeal.  The appellant appealed the denial of her claim to the Court and in a December 2020 Order, the Court endorsed the parties' findings in a Joint Motion for Remand, vacated the July 2017 Board decision and remanded the issues for compliance with Joint Motion. 

This appeal has been advanced on the Board's docket. See 38 C.F.R. § 20.902 (c); 38 U.S.C. § 7107 (a)(2).

Extraschedular Rating

Disability ratings are typically determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.17.  However, under certain circumstances VA may grant a disability rating outside of the rating schedule.  According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Director of Compensation Service for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321 (b)(1). 

An extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321 (b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Consideration of an extraschedular rating requires a three-step inquiry.  The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture.  If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms.  Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses.  Yancy v. McDonald, 27 Vet. App. 484, 495 (2016).  If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted.  See Thun, 22 Vet. App. 111.

In July 2015, the Board remanded the issues of entitlement to extraschedular ratings for service-connected cervical spine and left shoulder scar disabilities to the Agency of Original Jurisdiction (AOJ) to refer the claim to the Director.  In June 2016, the AOJ referred the claim for an extraschedular rating to the Director.  In a June 2016 decision, the Director of Compensation Service denied extraschedular ratings for cervical spine and left shoulder disabilities.  

The Director of Compensation Service's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision.  See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration).  In doing so, the Board is authorized to assign an extraschedular rating when appropriate.  Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015).

The Board notes that "VA's duty to maximize benefits requires it first to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered."  Morgan v. Wilkie, 31 Vet. App. 162 (2019).  Here, the Board previously denied a rating in excess of 40 percent for cervical spine disability and denied a compensable rating for left shoulder scar disability.  See BVA Decision (May 2009).  Thus, the Board is precluded from considering whether increased ratings are warranted for cervical spine and left shoulder scar disabilities, as those issues are no longer part of the present appeal.  The Board will only address herein whether extraschedular rating is warranted for each disability.

As identified by the parties in the December 2020 Joint Motion for Remand, the Board had previously found that referral for extraschedular consideration was warranted, it must now "explain its reasoning when a factual finding made at the referral stage comes out differently at the review stage" in accordance with Smiddy v. Wilkie, 32 Vet. App. 350 (2020).  See CAVC Decision (December 2020).  Pertinently, at the time of a July 2015 remand, the Board did not make any unequivocal findings regarding any Thun element when it referred the claims for extraschedular consideration.  See BVA Decision (July 2015).  Rather, the Board only referenced the July 2014 private medical review report in support of referral for extraschedular consideration.  Such a limited statement only demonstrates that the Board found it provided a reasonable possibility that the criteria under which the disabilities were rating may not contemplate all his symptomatology.  There were no binding factual determinations made in July 2015 remand that are contradicted by this decision or that necessitate a different outcome.  See Ray v. Wilkie, 31 Vet. App. 58 (2019).  

A referral for extraschedular consideration was previously warranted because the evidence provided a reasonable possibility that the criteria under which the disability was rated may not adequately contemplate the Veteran's symptoms.  However, as discussed below, a complete review of the evidence of record demonstrates that the preponderance of the evidence does not support the assignment of an extraschedular rating for either disability.  

As an aside, the Board notes that at the time of the July 2015 Board remand, under the United States Court of Appeals for the Federal Circuit (Federal Circuit) holding in Johnson v. McDonald, that referral of extraschedular consideration could be based on the collective impact of a veteran's service-connected disabilities.  See Id., 762 F.3d 1362, 1366 (Fed. Cir. 2014).  Although the July 2015 Board remand did not identify Johnson as a basis for referral for extraschedular consideration, its underlying precedent impacted that referral, especially given the sparse reasoning. 

However, on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321 (b)(1), effective January 8, 2018, to clarify that an extraschedular rating may not be based on the combined effect of multiple service-connected disabilities.  See Final Rule, 82 Fed. Reg. 57830, 57,835 (Dec. 8, 2017); see also proposed revision 81 Fed. Reg. 23228, 23232 (Apr. 20, 2016).  This revision is applicable to all applications for benefits that are received by VA on or after January 8, 2018, or that were pending before VA, the United States Court of Appeals for Veterans Claims, or the Federal Circuit on January 8, 2018.

In other words, the amendment to § 3.321(b)(1) was made effective retroactively to include pending cases such as this one.  For the Board to now consider whether the combination of multiple service-connected disabilities warrant extraschedular referral would contravene the amended version of 38 C.F.R. § 3.321 (b)(1). Entitlement to extraschedular consideration under Johnson is now precluded, and it can no longer apply to this case.

1.  Entitlement to a rating in excess of 40 percent for cervical spine disability on an extraschedular basis

The appellant contends that higher rating is warranted for the Veteran's cervical spine disability on an extraschedular basis.  The appellant contends that the severity of the Veteran's cervical spine disability, which includes radicular symptomatology in his upper extremities and headaches, is not adequately contemplated by the applicable schedular rating criteria.  The appellant further contends that the cervical spine disability resulted in marked interference with his employment, which has been previously acknowledged in a June 2015 Board remand.  In the alternative, the appellant asserts that separate ratings for neurological conditions and headaches secondary to cervical spine disability.  See Appellate Brief (February 2021). 

In support of the claim for extraschedular rating for the Veteran's cervical spine disability, the appellant has submitted the report of a private medical record review by Dr. F.B., M.D., dated July 2014, was submitted.  In that report, Dr. B. determined that the Veteran had a radicular symptoms and headaches associated with his cervical spine disabilities, and such additional symptomatology resulted in marked interference with his employment.  Dr. B. he explained that the Veteran's "cervical spine condition causes pain, causes weakness and numbness in the hands and causes pain which is aggravated by turning the head or looking upward."  See Third Party Correspondence (October 2014) and Medical Treatment Record - Non-Government Facility (May 2017). 

For the following reasons, the Board finds that an extra-schedular rating for the Veteran's cervical spine disability is not warranted.  

The Veteran's cervical spine degenerative arthritis was evaluated as 40 percent disabling under Diagnostic Code 5290-5293 prior to September 23, 2003, and under new Diagnostic Code 5242 thereafter.  Pertinently, an October 1998 rating decision reflects that the Veteran's cervical spine disability was evaluated under Diagnostic Code 5293 by analogy for IVDS due to similar symptomatology and provision of a higher evaluation.  Diagnostic Code 5290 only provided a maximum rating of 30 percent for disorders of the spine.  In the May 2009 decision, the Board considered the Veteran's disability under the criteria of both Diagnostic Code 5293 (pre-2003) and Diagnostic Code 5242 (post-2003).  

Prior to his death, the schedular criteria for rating the spine have been amended twice; once in September 2002, and again in September 2003.  Effective September 23, 2002, VA amended the criteria for rating intervertebral disc syndrome only but continued to evaluate that disease under Diagnostic Code 5293.  See 67 Fed. Reg. 54, 345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003)).  Effective September 26, 2003, VA updated the entire section of the rating schedule that addresses disabilities of the spine.  This update included a renumbering of the diagnostic codes pertinent to back ratings.  According to that renumbering, Diagnostic Code 5242 governs ratings of degenerative arthritis of the spine, and Diagnostic Code 5243 governs ratings of intervertebral disc syndrome.  See 68 Fed. Reg. 51,443 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020)).

The Board notes that in the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including criteria for evaluating spine disorders, were more recently amended effective from February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020).  However, as these more recent revisions occurred well after the Veteran's death in 2011, they are not applicable to this appeal as implementation of the revised regulation can be no earlier than the effective date of that change.  See 38 U.S.C. § 5110.  

Prior to September 26, 2003, Diagnostic Code 5293, provided disability ratings for intervertebral disc syndrome (IVDS).  A 40 percent rating was warranted for severe IVDS manifested by recurring attacks with intermittent relief warranted a 40 percent rating.  A 60 percent rating was warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief.  See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (prior to September 23, 2002).

Effective September 23, 2002, Diagnostic Code 5293 (later renumbered and amended as present Diagnostic Code 5243 effective September 26, 2003), was amended to provide for evaluation of IVDS on the total duration of incapacitating episodes over the last 12 months.  67 Fed. Reg. 54345-01 (August 22, 2002); 68 Fed. Reg. 51545-58 (Aug. 27, 2003); 69 Fed. Reg. 32499-01 (June 10, 2004) (correcting omission of Notes 1 and 2).  Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months.  A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

Effective September 26, 2003, the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease rates disabilities as follows, in pertinent part, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2020).

"Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure.  See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Medicine at 68 (4th ed. 1987)).

For VA compensation purposes, a normal range of motion for the cervical spine is 45 degrees of flexion, 45 degrees of extension, 45 degrees of lateral flexion in each direction, and 80 degrees of rotation in each direction.  The normal combined range of motion of the cervical spine (the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) is 340 degrees.  38 C.F.R. § 4.71a, Plate 2 (2020).

When rating intervertebral disc syndrome based on incapacitating episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020).

When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2020).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

In regard to the first Thun element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture.  The Veteran complained of neck pain, decreased range of motion, and radiating pain, numbness, and tingling into his left arm.  There is objective evidence of decreased range of motion in the cervical spine, at worst, limited to 20 degrees on flexion and limited to 5 degrees on extension.  The Veteran reported functional impairment due to constant neck pain and numbness in his hand impacted his activities of daily living, including physical activities, driving, travelling, using a phone, as well as his ability to travel beyond the home.  See Correspondence (Veteran) (November 1996); Medical Treatment Record - Government Facility (VA examination report) (November 1996); Third Party Correspondence (Informal Hearing Presentation) (January 2003); VA examination (January 2004), (January 2005) and (July 2011).  In addition, the Veteran has complained of headaches associated with his cervical spine disability, and medical professionals have indicated his headaches are related to his cervical spine disability.  See VA examination (January 2005), and Medical Treatment Record - Non-Government Facility (May 2017). 

A comparison between the level of severity and symptomatology of the Veteran's cervical spine condition with the established criteria found in the rating schedule for that disability shows that the rating criteria (both old and new) reasonably describes the Veteran's disability level and symptomatology.  That is, the applicable rating criteria and assigned disability rating contemplate limited motion, pain, and impairment of some daily activities.  Notably, under the post-2003 schedular rating criteria, the Veteran is assigned a disability rating for his cervical spine condition that is only contemplated where the evidence demonstrates unfavorable ankylosis of the cervical spine, which is not shown by the evidence in the present case (Diagnostic Code 5242).  38 C.F.R. § 4.71a (2020).  Consequently, the Veteran's continued 40 percent disability rating is under the pre-2003 rating criteria for intervertebral disc syndrome (Diagnostic Code 5293), which still would have provided a higher rating should the evidence have shown pronounced intervertebral disc syndrome.  

Additionally, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance.  38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37.  For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  In this regard, the Veteran's neck pain, and its effects, are considered as part of the schedular rating criteria for musculoskeletal disabilities.  See DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59.  

Moreover, with respect to the Veteran's radicular symptoms in his upper extremity, the pre-2003 criteria for IVDS specifically contemplated the severity of associated neurological findings in the assignment for a 60 percent under Diagnostic Code 5293.  38 C.F.R. § 4.71a (prior to September 23, 2002). Further, the post-2003 the general rating formula for diseases and injuries of the spine indicates that its criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Further, the post-2003 criteria contemplate separate ratings for associated neurological abnormalities.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2020). 

While headaches are not specifically addressed in the general rating formula for diseases and injuries of the spine, his reported associated headaches are reasonably similar to non-incapacitating headaches, which are listed under Diagnostic Code 8100.  Since there was existing schedular rating criteria which would have been adequate to evaluate the Veteran's headache complaints on a secondary basis of entitlement, assignment of an extraschedular rating for such symptoms is not warranted.  See Morgan, supra. See also Greenfield v. Tran, No. 18-1907, 2021 U.S. App. Vet. Claims LEXIS 107 (Jan. 29, 2021) (holding that the Board did not err in referral of a hearing loss claim for extraschedular consideration because existing schedular rating tools were adequate to evaluate the associated anxiety complaints).  

Because the various manifestations of the Veteran's neck disability are contemplated by the rating schedule, the Veteran's disability picture as a whole does not present a level of impairment that is so exceptional that the rating schedule is unable to assess it.  See Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371, at *11-12 (Dec. 30, 2020) (stating that ""exceptionality" as interpreted via Thun's first step must be viewed in the context of all available rating tools and cannot be reduced to a mere comparison of a veteran's symptomatology with the language of a particular diagnostic code.  A symptom cannot be deemed exceptional where it is capable of evaluation by conventional rating means.").  As the Board finds that the Veteran's level of disability and symptomatology are adequately contemplated by the rating schedule, there is no need to discuss the second Thun element.  Accordingly, a rating in excess of 40 percent for degenerative arthritis of the cervical spine on an extraschedular basis is not warranted.

The Board acknowledges that the appellant asserts that the separate ratings should be assigned for the radicular symptoms and headaches associated with the Veteran's cervical spine disability.  See Third Party Correspondence (May 2015), Correspondence (May 2017, and Appellate Brief (February 2021).  As noted above, this appeal is limited to consideration of extraschedular rating for cervical spine disability, and the issue of increased rating for cervical spine disability under the schedular rating is no longer on appeal.  Again, in the May 2009 decision, the Board denied increased rating for cervical spine disability.  The Veteran did not appeal the rating assigned by the Board to the U. S. Court of Appeals for Veterans Claims (Court) or filed a motion for reconsideration, and there is no adjudication of clear and unmistakable error in that Board decision.  The May 2009 Board decision is final.  See 38 C.F.R. § 20.1100.  Thus, the issue of increased rating for cervical spine disorder, to include consideration of separate ratings, under the regular rating schedular is not on appeal.  

In light of the foregoing, the Board finds that the Veteran's cervical spine disability is already contemplated by the assigned schedular rating criteria.  In the absence of exceptional factors associated with the Veteran's disabilities, the criteria for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

2.  Entitlement to a compensable rating for left shoulder scar disability on an extraschedular basis

The appellant seeks an extraschedular rating for the Veteran's left shoulder scar disability.  Other than a general assertion for extraschedular rating, the appellant and her representative have to not set forth a specific contention for the assignment of an extraschedular rating for left shoulder scar disability.  See Third Party Correspondence (March 2011) and (October 2014), Correspondence (May 2017), and Appellate Brief (2021). 

For the following reasons, the Board finds that an extra-schedular rating for the Veteran's left shoulder scar disability is not warranted.  

The Veteran's left shoulder scar disability has been evaluated as noncompensable under Diagnostic Code 7805.

The Board notes that the criteria for evaluating skin disabilities, including scars, contained in 38 C.F.R. § 4.118 were revised effective on August 30, 2002 (see 67 Fed. Reg. 49,590-595 (2002)), again revised effective on October 23, 2008 (73 Fed. Reg. 54708 (Sept. 23, 2008), and further revised effective on August 13, 2018 (see 73 Fed. Reg. 32, 592 (July 13, 2018)).  

Pertinently, the most recent revisions occurred well after the Veteran's death in 2011, and they are not applicable to this appeal as implementation of the revised regulation can be no earlier than the effective date of that change.  See 38 U.S.C. § 5110.

In addition, the revised criteria in effect from October 23, 2008 is also not applicable to this appeal.  When VA amended the rating criteria for evaluations of scars in October 2003, it was specifically noted that this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008.  A veteran whom VA rated before such date under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review.  The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates.  See 73 Fed. Reg. 54708 (Sept. 23, 2008). In this case, the Veteran's claim was filed prior to October 23, 2008, and neither he nor the appellant has requested consideration under the revised rating criteria.  Therefore, the Board only considered the claim under the pre-2002 and pre-2008 criteria.

Diagnostic Code 7805, under which the evaluation was assigned, was not changed when the criteria were revised in 2002.  Likewise, other diagnostic codes pertaining to the skin remained substantially unchanged after the revision.  The revised provisions, however, offer other criteria upon which skin disabilities may be evaluated that are not covered by the former provisions and are potentially relevant to the evaluation on appeal.

Prior to August 30, 2002, Diagnostic Codes 7801 and 7802 applied to burn scars and are, therefore, not applicable in the present case.  Under the post-2002 and pre-2008 revised rating schedule, Diagnostic Codes 7801 and 7802 apply to scars that are not on the head, face or neck, and, therefore, are applicable in the present case.  Diagnostic Code 7801 provides that scars on other than the head, face, or neck, that are deep or that cause limited motion warrant a 10 percent rating if the area or areas covered exceed 6 square inches (39 square centimeters).  38 C.F.R. § 4.118, Diagnostic Code 7801 (2008).  Diagnostic Code 7802 provides that scars on other than the head, face or neck that are superficial and that do not cause limited motion warrant a 10 percent evaluation if the area or areas covered are 144 square inches (929 square centimeters) or greater.  38 C.F.R. § 4.118, Diagnostic Code 7802 (2008).  

Prior to August 2002, Diagnostic Code 7803 provided a that superficial scars which are poorly nourished with repeated ulceration warranted a 10 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2002).  Under post-2002 and pre-2008 revision, a 10 percent disability rating is assigned for superficial scars that are unstable.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2008).  An unstable scar is where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at Note (1) (2008).  A superficial scar is one not associated with underlying soft tissue damage.  Id. at Note (2) (2008).

Prior to August 30, 2002, Diagnostic Code 7804 provided that a superficial scar that was tender and painful on objective demonstration warranted a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2016).  Under the post-2002 and pre-2008 revision revised regulation, a 10 percent disability rating is assigned for superficial scars that are painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).  A superficial scar is one not associated with underlying soft tissue damage.  Id. at Note (1) (2008).

Under both versions of the schedule rating, Diagnostic Code 7805, a scar is to be rated on limitation of function of the affected part.  38 C.F.R. § 4.118 (2002) and (2008).

Based on a review of the evidence, the Board finds that the Veteran's left shoulder scar disability is already contemplated by the assigned schedular rating criteria and the evidence does not show an exceptional disability picture necessary for an extraschedular rating. 

In regard to the first Thun element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture.  The Veteran's left shoulder scar disability is rated under Diagnostic Code 7805.  The record shows that he has complaints and findings of a postoperative scar located on the anterior left shoulder that measures approximately 15 cm with some underlying tissue loss, but no damage, and it was considered well-healed and nontender.  The Veteran did not assert, and the medical evidence of record does not demonstrate, that his postoperative left shoulder scar resulted in limitation of function.  See VA examination (October 1995), (January 2004), and (February 2007).  Pertinently, in the medical record review by Dr. F.B., M.D., dated July 2014, it was noted that the Veteran's scar by itself did not cause the any functional limitation in the left shoulder.  See Third Party Correspondence (October 2014) and Medical Treatment Record - Non-Government Facility (May 2017).

The Veteran's left shoulder scar symptomatology is contemplated under both versions of the applicable rating criteria for skin disabilities.  See 38 C.F.R. § 4.118, Diagnostic Codes 7802 (2008), 7803-7805 (2002) and (2008). Consequently, the Veteran's left shoulder scar does not result in any symptomatology that falls so far outside the rating schedule to render it inadequate to rate this disability.  Symptoms which were noted are contemplated by the rating schedule. 

Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected scar have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate.   

Here, the manifestations of the Veteran's left shoulder scar disability are reasonably contemplated by the applicable rating criteria for evaluating skin disabilities.  See   38 C.F.R. § 4.118, Diagnostic Codes 7802 (2008), 7803-7805 (2002) and (2008). Accordingly, the threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted.

For all the foregoing reasons, the Board finds that the matter of the Veteran's entitlement to higher, extra-schedular rating for the scar disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against this claim, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra.

3.  Entitlement to special monthly compensation (SMC) based on regular need of aid and attendance (A&A) 

By way of background, the Veteran's claim for SMC based on A&A was received on April 19, 2011.  SMC based on A&A was denied in an August 2011 rating decision, and subsequent to the Veteran's death, the appellant was substituted as the claimant for the purpose of all pending claims, to include the SMC claim.

The appellant contends that Veteran's service connected disabilities resulted in his need for aid and attendance on regular basis.  She noted that although was not prohibited from performing all activities of self-care, he still needed assistance of another person on a regular basis for dressing and undressing, food preparation, and activities requiring use of both hands, such as bathing, and toileting.  See Third Party Correspondence (October 2016), Correspondence (May 2017), and Appellate Brief (February 2021).  Further, she contends that the Veteran was "effectively housebound" as he would have been unable to leave premise of his home due to his inability to fully dress independently.  See Appellate Brief (February 2021).  

SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance.  See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b).

Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352 (a).  That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment.

"Bedridden" is defined as that condition, which, through its essential character, actually requires that a claimant remain in bed, is a proper basis for this determination. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.

It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made.  The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole.  It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed.  They must be based on the actual requirement of personal assistance from others.  See 38 C.F.R. § 3.352 (a).

For the period on appeal, the Veteran was service connected for the left shoulder disability (rated 80 percent disabling), the cervical spine disability (rated 40 percent disabling), and the left shoulder scar (rated 0 percent disabling).  He was also in receipt of a TDIU, effective January 14, 2004.

The Veteran was afforded a VA examination in July 2011.  There, the examiner stated that the Veteran was not permanently bedridden and could travel beyond his domicile. The Veteran reported waking up and being able to dress, but needing help putting on long pants. He stated that back pain prevented him from bending to put pants on. Further, he noted eating breakfast, but that his wife makes breakfast.  The Veteran reported that he used the microwave to cook simple foods.  He also noted occasional outings each week.  The Veteran also explained that he was able to sit in a shower seat and bathe himself.  He also stated that he was able to get ready for bed on his own.  The examiner reported that neck pain is problematic, and the left shoulder disability did not prevent the Veteran from protecting himself from the daily environment.  The Veteran was able to walk without assistance within the home. The examiner stated that the Veteran's service-connected disabilities did not prevent him from self-care, the ability to ambulate or travel beyond the premises of the home.

As part of his July 2014 medical record review, Dr. F.B. stated that the Veteran's cervical spine and left shoulder disabilities resulted in the need for regular aid and attendance.  He explained that "[h]e will require help with the dressing and undressing, preparation of food and any other activity that requires the use of both hands."

In light of the above, the weight of the evidence does not demonstrate that the Veteran's service-connected disabilities required the aid and attendance of another individual.  To that end, the Veteran was able to dress himself with the exception of putting on long pants.  The Veteran himself reported that he was able to prepare simple foods in the microwave and was able to feed himself.  The Veteran also explained that he was able to sit in a shower seat and bathe himself.  He also stated that he was able to get ready for bed on his own.  While the July 2011 examiner reported that neck pain is problematic, the left shoulder disability did not prevent the Veteran from protecting himself from the daily environment.  The examiner concluded that the Veteran's service-connected disabilities did not prevent him from self-care, the ability to ambulate or travel beyond the premises of the home.

The Board acknowledges the opinion of Dr. F.B. However, that opinion is not consistent with the facts of record.  While Dr. F.B. concluded that the Veteran requires help with dressing, preparation of food and any activity that requires the use of both hands, the July 2011 VA examination report indicates otherwise.  The Veteran himself stated that he only needs help putting on long pants and is able to prepare meals in the microwave and is also able to feed himself.  

Dr. B.'s statement is not in accord with the factual record, to include the July 2011 VA examination report.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely").  Thus, it is of minimal probative value.

The July 2011 VA examiner's report and opinion is of substantial probative weight. The report is based on the Veteran's own statements and a physical examination of the Veteran, to include a review of his service-connected disabilities.  The examiner explained the limitations caused by the Veteran's service-connected disabilities and explained that the disabilities did not prohibit the Veteran from self-care, the ability to ambulate or travel beyond the premises of the home.  The Board finds the opinion of the July 2011 VA examiner probative.  See Hayes v. Brown, 5 Vet. App. 60, 69 (1993).  Thus, it outweighs the opinion of Dr. B., which as explained above, is not consistent with the facts of record, to include the July 2011 VA examination report.

In the December 2020 Joint Motion for Remand, the parties determined that in the July 2017 decision, Board failed to provide adequate reasons and basis when it conceded that Veteran could not put on long pants without assistance but determined that he was not entitled to SMC based on A&A.  The parties instructed that Board must address this discrepancy.   See CAVC Decision (December 2020).  The Board will do so now. 

As discussed above, the evidence demonstrates that the Veteran requires assistance with dressing, to the extent he needs to put on long pants, but the more probative evidence showed that he was able to feed and bath independently.  While record demonstrates that the Veteran is in need of some assistance with certain tasks, it does not show mental and/or physical impairment that rises to the level of helplessness.  A need for assistance with putting on long pants, while limiting, is not enough to show an inability to independently dress as the Veteran has not suggested that he is unable to adequately dress himself in shorts or comfort-style pants, such as joggers which slip on easier than traditional pants.  Instead, the more probative evidence of record showed he was generally able to perform his activities of daily living despite documented functional limitations due to cervical spine and left shoulder disabilities.  As helplessness is not shown, the Veteran cannot prevail on a claim for SMC based on A&A.

For all of the foregoing reasons, the Board finds that the preponderance of the evidence is against a finding that SMC based on A&A is warranted.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.

REASONS FOR REMAND

1.  Entitlement to a rating in excess of 20 percent from July 8, 2001 to January 14, 2004 for left shoulder disability is remanded.

By way of background, service connection for left shoulder degenerative joint disease was granted in a November 2007 rating decision, and the following staged ratings were assigned: a noncompensable rating prior to November 17, 1996, a 10 percent evaluation from November 17, 1996 to January 13, 2004, and an 80 percent thereafter.  The Veteran disagreed with the initial, staged ratings assigned.  In an April 2010 decision, the Board denied increased ratings for the left shoulder disability.  Following an appeal to the Court, pursuant to a Joint Motion, the Court vacated the portion of the Board's decision that denied a rating in excess of 10 percent from July 8, 2001, to January 14, 2004.  Later, in an October 2016 rating decision, a 20 percent rating was granted for the period from July 8, 2001, to January 14, 2004.  Thus, the Board's inquiry is limited to whether a rating in excess of 20 percent is warranted for the period from July 8, 2001 to January 14, 2004.

The Veteran's left shoulder disability was rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201, for the period from July 8, 2001 to January 14, 2004.   

The Board notes that in the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including criteria for shoulder and arm under Diagnostic Codes 5201 and 5202, were more recently amended effective from February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020).  However, as these more recent revisions occurred well after the Veteran's death in 2011, they are not applicable to this appeal as implementation of the revised regulation can be no earlier than the effective date of that change.  See 38 U.S.C. § 5110.

The appellant seeks a higher rating for the Veteran's left shoulder disability for the period from July 8, 2001 to January 14, 2014.  The appellant contends that the Veteran's left shoulder disability was manifested by symptomatology equivalent to "a flail shoulder" as of at least August 2001 and believes that an 80 percent disability rating is warranted from that date.  See Appellant Brief (February 2021).

The appellant asserts the medical evidence of record demonstrates that the Veteran's left shoulder disability was manifested by more severe symptomatology prior to January 2004 than contemplated by the current assigned rating.  In particular, the appellant has identified VA medical records that demonstrate that the Veteran had severe limitation of motion in his left shoulder prior to January 2004.  The appellant has also submitted a report of a private medical review of evidence, in which the private physician opined that the Veteran's left shoulder had become useless and uncontrollable by the Veteran since August 2001.  The appellant contends that the Veteran's left shoulder disability was manifested by more severe symptomatology prior to January 2004 more closely approximates the criteria of an 80 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5202 for flail shoulder of major arm.  See Appellant Brief (February 2021). 

Finally, the appellant asserts that a medical opinion is needed to reconcile the conflicting evidence of record regarding severity of the Veteran's service-connected degenerative arthritis left shoulder disability prior to January 2004.  See Appellant Brief (February 2021).  

In the December 2020 Joint Motion for Remand, the parties determined that in the July 2017 decision, the Board failed to provide adequately explain the findings contained in the July 2014 private medical review report conflicted with the evidence in the Veteran's VA treatment records dated from July 2001 to January 2004.  See CAVC Decision (December 2020). 

The Board agrees that a remand is necessary to ensure that VA has met its duty assist.  In this regard, a remand is needed to obtain a medical opinion that reconciles the conflicting evidence of record and addresses the signs and symptoms of the Veteran's left shoulder disability prior to January 14, 2004 based on review of the medical records.  Moreover, such a medical opinion will assist the Board in complying with the parties' instructions in the Joint Motion for Remand.  

Specifically, the record contains conflicting medical evidence on what functional impairment in his left upper extremity was result of his service-connected degenerative arthritis left shoulder disability as opposed to other medical conditions, such as nonservice connected residuals of stroke, which needs to be reconciled prior to adjudication of the claim.  

In this regard, VA treatment records show that the Veteran suffered a stroke in 2001 and he had residual weakness in his upper extremity.  VA treatment records also show the Veteran fractured his left wrist in July 2001, which was treated with a cast and he subsequently underwent occupational therapy.  A September 2001 VA treatment records reflects that the Veteran had range of motion to 90 degrees on flexion in his left shoulder and he reported that he was independent in all activities of daily living.  A January 2003 VA treatment record noted passive range of motion revealed left shoulder flexion with elbow flexion at 90 degrees, and left shoulder stiffness and hemiparesis were observed.  A November 2003 VA treatment record noted that the Veteran had a flexion contracture of his left upper extremity secondary to an old stroke.  See CAPRI (January 2013).  

Additionally, a VA examination carried out on January 14, 2004, subsequent to the period on appeal, noted that the Veteran reported a history of severely decreased range of motion in left shoulder for the past two years  The January 2004 VA examiner noted that as the result of the long period of immobilization of the wrist, the Veteran's left elbow and shoulder were frozen.  Physical examination revealed significant contracture and deformity of the left hand and wrist with severe decreased range of motion of the hand, wrist, elbow, and shoulder to almost zero degrees.  The examiner noted left shoulder abduction to 50 degrees and external and internal rotation to 30 degrees.  The VA examiner concluded that the Veteran had good range of motion of the left shoulder prior to fracture of the left wrist, but that fixation and immobilization in a cast resulted in misuse contracture of the shoulder and elbow.

Further, in support of claim for increased, the appellant submitted the report of a medical review from Dr. F.B., M.D., dated in July 2014.  Based on review of the record, Dr. B. opined that the Veteran's left upper extremity was equivalent to a flail shoulder as it had become useless and not controlled by the Veteran since August 2001 when the casting was removed.  The Veteran had almost no motion in his left shoulder.  See Third Party Correspondence (October 2014) and Medical Treatment Record - Non-Government Facility (May 2017).  However, Dr. B.'s findings do not appear consistent with the facts reflected in the September 2001 and January 2003 VA treatment records, nor does it reconcile the finding that   flexion contracture of the left arm was due to an old stroke, and not the Veteran's service-connected disability.  

It remains unclear to the Board what functional impairment in his left upper extremity was result of his service-connected degenerative arthritis left shoulder disability as opposed to other medical conditions, such as nonservice connected residuals of stroke.  A remand is needed to obtain a VA medical opinion that reconciles the conflicting evidence of record and addresses the signs and symptoms of the Veteran's left shoulder disability prior to January 14, 2004 based on review of the medical records.

2. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to January 14, 2004 is remanded.

The Veteran's claim for a TDIU was received on October 8, 1996.  In a November 2007 rating decision, a TDIU was granted, effective January 14, 2004.  It remains for the Board to consider whether the Veteran was entitled to a TDIU prior to January 14, 2004.  See Harper v. Wilkie, 30 Vet. App. 356 (2018). 

The appellant contends the Veteran's service-connected cervical spine and left shoulder disabilities prevented him from obtaining and maintaining substantially gainful employment as of at least August 2001.  She contends that due to the severity of his cervical spine and left shoulder disabilities, the Veteran was unable to perform the physical tasks required of a physically demanding or even sedentary job for which he has been trained.  See Appellate Brief (February 2021). 

Since a decision on the issue for increased rating for left shoulder disability from July 8, 2001 to January 14, 2004 could significantly impact a decision on the issue of entitlement to TDIU prior to January 14, 2004, the issues are inextricably intertwined.  A remand of the claims for entitlement to a TDIU prior to January 14, 2004 is required.

3. Entitlement to Dependent Indemnity Compensation (DIC) under § 1318 is remanded.

Finally, because a decision on the issues of increased left shoulder and TDIU prior to January 14, 2004 could significantly impact a decision on the issue of entitlement to DIC under § 1318, the issues are inextricably intertwined.  A remand of the claim for DIC under § 1318 is required.

The matters are REMANDED for the following action:

1.  Obtain a medical opinion from an appropriate clinician regarding the signs and symptoms of the Veteran's service-connected left shoulder degenerative arthritis disability for the period from July 8, 2001 to January 13, 2004.  The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The examiner is then asked to address the following: 

(a.) Provide a description of the signs and symptoms attributable to the Veteran's left shoulder disability for the period from July 8, 2001 to January 13, 2004.  

(b.) Is it at least as likely as not that the flexion contracture of the left arm was a result of fixation and immobilization of left arm in a cast as opposed to residuals of old stroke?  If the flexion contraction of the left arm was a result of misuse, when did it first manifest based on the medical records.  The clinician should identify the medical evidence which supports this opinion.

(c.) Was the functional loss due to the Veteran's left shoulder disability likely equivalent to a "flail shoulder" during the period from July 1, 2008 to January 14, 2004? The clinician should specify when his disability first resembled a "flail shoulder" or its equivalent based on the medical records.  The clinician should identify the medical evidence which supports this opinion. 

(d.) If not, was the functional loss due to the Veteran's left shoulder disability likely the equivalent of ankylosis of the joint during the period from July 1, 2008 to January 14, 2004?  If so, was his disability equivalent to favorable, intermediate between favorable and unfavorable, or unfavorable ankylosis?  The clinician should specify when his disability first resembled such ankylosis or its equivalent based on the medical records.  The clinician should identify the medical evidence which supports this opinion. 

(e.) If not, was the functional loss due to the Veteran's left shoulder disability likely the equivalent of limitation of motion to shoulder level, limitation of arm motion between midway and shoulder level, or limitation of arm motion from 25 degrees from side during the period from July 1, 2008 to January 14, 2004?  If so, when his disability first resembled such limitation of motion or its equivalent based on the medical records.  The clinician should identify the medical evidence which supports this opinion.

(f.) In addressing the above questions, the clinician is advised to consider the Veteran's VA treatment records dated from July 2001 to January 2004, and in particular, those dated in September 2001, January 2003, and November 2003, the January 2004 VA examination report, and Dr. B.'s July 2014 medical review report. 

(Continued on the next page)

 

2. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached.  The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

3.  Thereafter, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, the appellant and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

 

James A. DeFrank

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Murray

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.