Citation Nr: 21032652 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 10-00 469 DATE: May 27, 2021 ORDER Entitlement to disability ratings, in excess of 20 percent prior to December 20, 2010, in excess of 30 percent from December 20, 2010 to May 18, 2011, and in excess of 30 percent from July 1, 2012, for degenerative joint disease (DJD) of the right shoulder, is denied. REMANDED Entitlement to service connection for a skin disorder, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. Prior to December 20, 2010, the Veteran's right shoulder disability did not result in functional limitation of his right arm midway between side and shoulder level (with flexion and/or abduction limited to 45 degrees); there was no evidence of any ankylosis of the scapulohumeral articulation, malunion of the humerus with marked deformity, or recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements. 2. From December 20, 2010 to May 18, 2011, the Veteran's right shoulder disability revealed abduction that was limited to no worse than 40 degrees and flexion that was limited to no worse than 120 degrees; his right shoulder disability did not result in any intermediate ankylosis of the scapulohumeral articulation, and there was no evidence of any fibrous union of the humerus. 3. Since July 1, 2012, the Veteran's right shoulder disability has not been manifested by post-prosthesis placement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. In addition, there is no evidence suggesting intermediate or unfavorable ankylosis of scapulohumeral articulation or other impairment of the humerus; there is also no evidence that his right arm limitation of motion of flexion and/or abduction was limited to 25 degrees from the side. CONCLUSION OF LAW The criteria for entitlement to disability ratings in excess of 20 percent prior to December 20, 2010, in excess of 30 percent from December 20, 2010 to May 18, 2011, and in excess of 30 percent from July 1, 2012, for DJD of the right shoulder, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5051, 5200-5203. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1969 to March 1971 and from September 1974 to July 1976, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) from August 2008 and August 2014 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (RO). In the August 2008 rating decision, the RO granted a 10 percent rating for DJD of the right shoulder, which the Veteran timely appealed. In the August 2014 decision, the RO denied entitlement to service connection for a skin condition. The Veteran timely appealed that decision. Pertinent to his increased ratings claim, the Veteran testified at a Board hearing in October 2012. A transcript of the hearing is of record. The Veterans Law Judge who presided over that hearing is no longer available to participate in this appeal. The Veteran was offered an opportunity to appear at a new hearing, but has declined this opportunity. In February 2021, the Board remanded the claim for further development. Pertinent to his service connection claim, in his VA Form 9, the Veteran requested a Board hearing. Subsequently in April 2021, the Veteran notified the Board that wished to withdraw his request for a hearing. Increased Ratings, Generally Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505. Increased Ratings, Right Shoulder Disability In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. With any form of arthritis, painful motion is an important factor of disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The Veteran is in receipt of service connection for total right (major) shoulder arthroplasty with degenerative joint disease, formerly rated as right shoulder, degenerative joint disease. Excluding his temporary total rating period, it is rated as 20 percent disabling prior to December 20, 2010; 30 percent disabling from December 20, 2010 to May 18, 2011; and 30 percent disabling from July 1, 2012. Normal ranges of motion of the shoulder are forward flexion and abduction from 0 to 180 degrees and internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Disabilities of the shoulder may be rated under DCs 5200-5203 and residuals of shoulder arthroplasty may be rated under DC 5051. 38 C.F.R. § 4.71a, DCs 5051, 5200-5203. The Veteran is right-hand dominant. DC 5201 allows, in the major extremity, for a 20 percent rating for limitation of arm motion at shoulder level, a 30 percent rating for limitation of motion to midway between side and shoulder level. DC 5202 allows for ratings of 20 to 80 percent for impairment of the humerus in the major extremity. DC 5203 allows for ratings of 10 to 20 percent for impairment of the clavicle or scapula. DC 5024 requires that tenosynovitis be rated on the basis of limitation of motion as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. DC 5003 provides that degenerative arthritis is rated based on limitation of motion under the appropriate codes for the specific joint involved. Id. In the absence of a compensable limitation of motion, DC 5003 allows for a rating of 10 percent for each major joint or group of minor joints affected. Id. For VA rating purposes, a shoulder is a major joint. 38 C.F.R. § 4.45(f). DC 5051 pertains to prosthetic replacement of the shoulder joint. 38 C.F.R. § 4.71(a), DC 5051. Prior to a Rating Schedule Change, effective February 7, 2021, DC 5051 provided, with respect to the major extremity, a 100 percent rating for one year following implantation of the prosthesis, as was awarded in this case for the period currently not under consideration (from May 18, 2011 until July 1, 2012.) The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5200, 5201, 5202, or 5203. The minimum rating following replacement of a shoulder joint is 30 percent. 38 C.F.R. § 4.71a. Turning to the relevant record, the May 2008 VA examination report notes the Veteran's diagnosed right shoulder DJD, stating that the Veteran has had decreased range of motion and reported pain, weakness, and difficulty with movements requiring throwing. The Veteran reported flare-ups, including when he lifts heavy things. Range of motion testing revealed flexion and abduction to 180 degrees; right external rotation and right internal rotation were each to 90 degrees. There were no arthritic symptoms nor any ankylosis. X-ray imaging revealed mild degenerative changes in acromioclavicular joint. January 2010 private treatment records reflect that the Veteran reported shoulder pain as a result of him throwing hand grenades during service. May 2010 VA treatment records note that the Veteran stated that the pain medication he is taking for his right shoulder has not helped, and he described his pain as 7/10. December 2010 VA treatment records document the Veteran's right shoulder pain, which he describes as 9/10. Range of motion testing revealed that forward flexion was limited to 120 degrees, abduction was limited to 40 degrees, external rotation was limited to 20 degrees, and internal rotation was limited to 60 degrees. February 2011 VA treatment records note the Veteran's right shoulder pain. His range of motion revealed forward flexion to 120 degrees, abduction to 70 degrees, external rotation to 30 degrees, and internal rotation to 60 degrees. VA treatment records note that the Veteran underwent total shoulder arthroplasty for his right shoulder in May 2011. Medical examination post-operation revealed a well-seated and intact prosthesis. There was no evidence of unwanted foreign body status post right shoulder arthoplasty. August 2011 VA treatment records reflect that the Veteran had a re-evaluation of his right shoulder and he denied significant pain after his right total shoulder arthoplasty. Range of motion testing revealed flexion to 135 degrees, abduction to 80 degrees, external rotation to 40 degrees, and internal rotation to 90 degrees. November 2012 VA treatment records note the Veteran's right shoulder range of motion revealed forward flexion to 120, abduction to 80 degrees, external rotation to 30 degrees, and internal rotation to 80 degrees. The December 2014 VA examination report noted the Veteran's right shoulder condition (total shoulder arthroplasty). The Veteran reported daily right shoulder pain aggravated by lifting and reaching out as well as rotating his right arm. The Veteran also stated that he was unable to reach behind his lower right back because of pain. Range of motion on the right shoulder revealed flexion to 150 degrees and abduction to 150 degrees; external rotation was to 50 degrees and internal rotation was to 40 degrees. Pain with motion was also noted. The Veteran did not have additional functional loss or loss of range of motion after three repetitions. The Veteran did not report any flare-ups. Muscle strength testing was revealed to be normal. There was no muscle atrophy, no ankylosis, no rotator cuff condition or shoulder instability, and no disunion or malunion of humerus with moderate or marked deformity. The Veteran had a right shoulder scar noted to be less than 6 square inches. There was also no objective evidence of crepitus or degenerative or traumatic arthritis. Regarding function impact of his right shoulder condition on his ability to work, the examiner stated that the Veteran could not have prolonged or repetitive lifting. The February 2020 VA examination report noted the Veteran's right shoulder total shoulder arthroplasty. The Veteran stated that not much has changed in the last five to six years regarding his condition. He states that he still experiences recurrent daily right shoulder pain and range of motion loss, but that he has learned to live with limitations. He reported taking Tramadol which helps with pain and that he needs to take extra doses for flare ups. The Veteran reported weekly flare ups due to forced reaching behind the back with loss of function due to pain and fatigue. Range of motion testing revealed flexion and abduction to 150 degrees; external rotation to 50 degrees and internal rotation to 40 degrees. The range of motion contributed to reduced mobility. There was pain noted on examination and it causes functional loss; there was no evidence of pain with weight bearing. There was evidence of pain during passive range of motion, but no pain during non-weight bearing. There was evidence of localized tenderness on palpation of joint, described as pain over the bicipital groove. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with three repetitions and additional functional loss/range of motion was reported, to include pain and fatigue. Muscle strength testing was revealed to be normal and there was no atrophy, no ankylosis, no rotator cuff conditions, and no shoulder instability. The Veteran did not have loss of head, nonunion, or fibrous union of the humerus, nor any malunion of the humerus with moderate or marked deformity. The examiner noted the residuals of his May 2011 right shoulder total shoulder arthroplasty: intermediate degrees of residual weakness, pain and/or limitation of motion. The Veteran had a right shoulder scar noted to be less than 6 square inches. There was also no objective evidence of crepitus. Regarding functional impact, the examiner stated that his right shoulder condition will impact any job requiring repetitive or prolonged lifting or reaching out with his right arm. Prior to December 20, 2010, the evidence of record did not establish that the Veteran's right shoulder disability caused him functional limitation of his right arm midway between side and shoulder level (with flexion and/or abduction limited to 45 degrees). Likewise, there was no evidence of ankylosis of the scapulohumeral articulation, or malunion of the humerus with marked deformity, or recurrent dislocation of the humerus at scapulohumeral joint with frequent episodes and guarding of all arm movements. Thus, a rating greater than 20 percent is not warranted. From December 20, 2010 to May 18, 2011, the evidence of record shows that the Veteran's right shoulder disability abduction was limited to no worse than 40 degrees and flexion was limited to no worse than 120 degrees; his right shoulder disability also did not result in any ankylosis of the scapulohumeral articulation, and there was no evidence of any fibrous union of the humerus. Thus, a rating greater than 30 percent is not warranted. The Board has considered the effective date of December 20, 2010 that has been assigned for the increased rating of 30 percent and finds that it is appropriate. December 20, 2010 is the date of the treatment record showing that the Veteran had decreased abduction to 40 degrees, indicating limitation of motion of the arm midway between the side and shoulder level, and this is the earliest date that such an increased limitation of motion was indicated. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (Effective dates should not be mechanically assigned based solely on the date of the VA examination, but should include consideration of all of the facts to determine the date that the increase in disability was ascertainable.). In a May 2015 rating decision, the Veteran was granted a temporary total evaluation based on his total right shoulder replacement, effective May 11, 2011. The Veteran was thus rated 100 percent for one year following implantation of the prosthesis. The one-year total rating that commences after a one-month convalescent rating under DC 5051 concluded on June 30, 2012. Since July 1, 2012, the evidence does not show that the Veteran had any complication following the May 2011 total right shoulder arthroplasty. Notably, the Veteran's right shoulder disability has not been manifested by post-prosthesis placement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. In addition, there are no right shoulder imaging studies suggesting intermediate or unfavorable ankylosis of scapulohumeral articulation or other impairment of the humerus. There is also no evidence that his right arm limitation of motion of flexion and/or abduction limited to 25 degrees from the side. Thus, a rating greater than 30 percent is not warranted. To the extent that the Veteran would argue that his functional loss (other than painful motion) would warrant a separate rating, the Board finds that his functional loss is already contemplated under the assignment of a diagnostic code that contemplates a joint disability (DC 5010, DCs 5200-5203, and DC 5051). 38 C.F.R. § 4.45 notes that joint disabilities cause functional impairment that may include: less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, and atrophy from disuse. The Board notes that each diagnostic code for a joint disability specifically contemplates these types of functional loss, which are factored into the assigned disability ratings for the joint disability. Here, the Board finds that these functional impairments of the Veteran's right shoulder have been contemplated by the Veteran's assigned diagnostic codes and that assignment of a separate rating would constitute impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.40. 4.45. In adjudicating a claim, the Board has assessed the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, when the Veteran's account of his symptomatology is viewed collectively with the other medical evidence of record, the resulting disability picture is consistent with the assigned ratings. In sum, the Board finds that for the reasons and bases discussed, the preponderance of the evidence is against the claim for increased ratings. There is no reasonable doubt to resolve in the Veteran's favor, and the claim is denied. 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his attorney have raised any other issues regarding his right shoulder disability, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Skin Disorder The Veteran contends that he has a skin condition secondary to herbicides agent exposure. The Veteran served in Vietnam and is therefore presumed to have been exposed to Agent Orange. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). The Board notes that VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases, including chloracne or other acneform disease consistent with chloracne, are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e) (2016). In connection with his claim, the Veteran underwent VA skin examination in July 2014. The examiner noted that the Veteran was diagnosed in service with cystic acne on his back in July 1969. The Veteran was evaluated and treated with Tetracycline antibiotics for two weeks, whereupon the condition resolved without any residuals. The examiner opined that the Veteran does not any current skin conditions, including any chloracne or similar acneform disease. Thus, the examiner concluded that in his opinion the Veteran's skin condition was resolved and he currently does not have any skin condition, to include residuals of in-service cystic acne. While the examiner found no current evidence of a skin disorder, the Veteran's VA treatment records since the 2014 VA examination show that he was lichens simplex in September 2017. He was found to have raised nodular lesions with crust on both arms and lichenified excoriated papules. He was also found to have a red rash on the inguinal folds in August 2020. The Board therefore finds that a new VA examination is needed in order to determine whether the Veteran has any current skin disorder which was incurred in or related to service. The matters are REMANDED for the following action: 1. Obtain all VA treatment records since August 2020. 2. Schedule the appellant for an examination to address the nature and etiology of any current skin disorder. The examiner must be provided access to the appellant's entire claims file and must specify in the report that the claims file has been reviewed. The examiner should then address: What are the appellant's current skin diagnoses, including any disorders that have occurred since the Veteran submitted his claim in September 2013? Please discuss his previous diagnoses of lichens simplex/ lichenified excoriated papules and rash on the inguinal folds. For all disorders found, is it as likely as not that the disorder had its onset during service or is related to any injury or incident in service, including his presumed exposure to herbicide agents in Vietnam? Please specifically discuss the Veteran's in-service treatment in June 1969 treatment for cystic acne on his back and in December 1969 treatment for skin rash on the face. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.