Citation Nr: 22007602 Decision Date: 02/10/22 Archive Date: 02/10/22 DOCKET NO. 15-28 444 DATE: February 10, 2022 ISSUES Whether the reduction of a disability rating from 30 percent to 20 percent for chronic AC separation of the left shoulder with associated degenerative changes and tendonitis status post-surgical repair effective November 1, 2020, was proper. Entitlement to an increased disability rating in excess of 20 percent prior to July 21, 2010, for chronic AC separation of the left shoulder with associated degenerative changes and tendonitis status post-surgical repair, and an evaluation in excess of 30 percent therefrom. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER The restoration of a 30 percent disability rating for chronic AC separation of the left shoulder with associated degenerative changes and tendonitis status post-surgical repair from November 1, 2020 is granted. Entitlement to an increased disability rating in excess of 20 percent prior to July 21, 2010, for chronic AC separation of the left shoulder with associated degenerative changes and tendonitis status post-surgical repair, and an evaluation in excess of 30 percent therefrom is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In promulgating the August 2020 rating decision reducing the Veteran's left shoulder disability rating from 30 percent to 20 percent, the RO failed to comply with the procedural requirements for implementing the reduction by failing to provide the Veteran with notice or opportunity to present additional evidence showing that compensation should be continued at the 30 percent rating. 2. For the period on appeal prior to July 21, 2010, the Veteran's service-connected left shoulder disability is manifested by complaints of pain, pain on motion, degenerative arthritis, and limitation of motion at the shoulder level to 90 degrees. A limitation of motion in flexion and/or abduction to 25 degrees was not shown. 3. For the period from July 21, 2010, the Veteran's service-connected left shoulder disability is manifested by complaints of pain, pain on motion, degenerative arthritis, and limitation of motion at the shoulder level to 30 degrees. Ankylosis of scapulohumeral articulation with unfavorable ankylosis that limits abduction to 25 degrees from the side was not shown. CONCLUSIONS OF LAW 1. The reduction of the rating from 30 percent to 20 percent for the service-connected left shoulder disability effective November 1, 2020, was improper and is void ab initio. 38 U.S.C. § 5107; 38 C.F.R. § 3.105. 2. The criteria for an increased evaluation in excess of 20 percent for the left shoulder disability for the period on appeal prior to July 21, 2010 have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5201. 3. The criteria for an increased evaluation in excess of 30 percent for the left shoulder disability from July 21, 2010 forward have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5200, 5200, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1994 to May 2001. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in a July 2015 decision the RO increased the Veteran's disability rating for his left shoulder from a 20 percent rating to 30 percent, effective July 21, 2010. However, as the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation for his left shoulder disability, the additional assignment of benefits in the July 2015 rating decision is not considered to have resolved the Veteran's increased rating claim, and the issue remained on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The matter was last before the Board in October 2018 at which time it was remanded for additional development, including to afford the Veteran a new VA shoulder examination. Prior to returning the matter to the Board, the RO issued a rating decision in August 2020 finding clear and unmistakable error with the July 2015 rating decision. At that time the RO reduced the Veteran's assigned rating for his left shoulder based on limitation of motion from 30 percent to 20 percent effective November 1, 2020. The RO also assigned a separate disability rating for left shoulder dislocation as secondary to the service- connected left shoulder disability, with a 20 percent rating effective December 4, 2019. This matter is back before the Board for adjudication. The Board notes that the October 2018 remand directives have been substantially complied with and the Board may proceed to the merits of the issues on appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). When a veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447a (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Further, while adjudication of TDIU is part of this decision, there is no lay or medical evidence that the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. As it relates to the issue of a TDIU, the Board finds that a remand for further evidentiary development is necessary before this issue can be adjudicated. Increased Schedular Ratings - General Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 background 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans' Claims (Court) addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The terms "slight," "marked," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Shoulder Disability: Legal Standards The Veteran is seeking an increased rating for his left shoulder, saying his disability is worse than described in previous evaluations. He was originally service connected for left shoulder tendinitis in an October 2002 rating decision, with an initial rating of 10 percent, effective from the day following his separation from service, May 23, 2001. The Veteran did not appeal that decision, and thus it went final. In October 2007 the Veteran filed a claim for an increased rating for his left shoulder, which was granted in an October 2008 rating decision and increased to 20 percent under Diagnostic Codes 5024-5203, effective July 6, 2007. The Veteran did not appeal that decision, and thus it went final. The Veteran underwent surgery for the acromioclavicular arthritis of his left shoulder on March 11, 2009. The Veteran filed a claim for an increased rating based on the procedure on March 23, 2009. An August 2009 rating decision awarded a temporary evaluation of 100 percent effective from the date of the procedure to July 1, 2009, the first day of the month following a 3-month period of convalesce, and then a 20 percent rating resumed from July 1, 2009 forward. The Board notes that the period of the temporary total evaluation is not on appeal and therefore will not be discussed further. 38 C.F.R. §§ 3.400, 4.30, 4.71a. The Veteran filed a claim for an increased rating on February 10, 2010. Following a VA examination on February 22, 2010 the Veteran's claim for an increased rating was denied in an March 2010 rating decision. As the March 2010 rating decision is the decision on appeal here, the Board will focus on the disability level of his left shoulder disability from one year immediately preceding the claim. See 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) (stating that in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the increased-rating claim); Hart v. Mansfield, 21 Vet. App. 505 (2007). During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) issued a February 2015 rating decision increasing the Veteran's rating for his left shoulder disability to 30 percent under Diagnostic Code 5201, effective July 21, 2010. In an August 2020 rating decision, following the October 2018 Board remand, the RO found that there had been a clear an unmistakable error with the July 2015 rating decision which assigned the 30 percent evaluation for the Veteran's left shoulder. 38 C.F.R. § 3.105. In the August 2020 decision the RO reduced the Veteran's rating for his left shoulder to 20 percent under Diagnostic Codes 5003-5203, effective November 1, 2020. The August 2020 rating decision also granted service connection for left shoulder dislocation and assigned an evaluation of 20 percent, effective December 4, 2019. In assigning hyphenated diagnostic codes, the number assigned to the residual condition on the basis of which the rating is determined will generally represent injuries. Diseases will be identified by the number assigned to the disease itself, with the residual condition added, preceded by a hyphen. 38 C.F.R. § 4.27. Disabilities of the shoulder and arm will be rated according to Diagnostic Codes 5200-5203. Limitation of motion of the arm is evaluated under DC 5201. 38 C.F.R. § 4.71a, DC 5201. Ratings assigned pursuant to this code may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (non-dominant) extremity. The Veteran here is right-handed, per VA medical evidence and his own statements, and thus the left shoulder under appeal is his minor, non-dominant side. Diagnostic Code 5200 provides that favorable ankylosis of scapulohumeral articulation, with abduction to 60 degrees, and the ability to reach mouth and head warrants a 20 percent evaluation (minor shoulder) and 30 percent evaluation (major shoulder). Intermediate, between favorable and unfavorable, ankylosis of scapulohumeral articulation warrants a 30 percent evaluation (minor) and 40 percent evaluation (major). Unfavorable ankylosis of scapulohumeral articulation, with abduction limited to 25 degrees from side, warrants a 40 percent evaluation (minor) and 50 percent evaluation (major). 38 C.F.R. § 4.71a. Diagnostic Code 5201 provides that limitation of motion of the major or minor arm at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent evaluation. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent evaluation (minor) and 30 percent evaluation (major). Limitation of motion of the arm (flexion and/or abduction) to 25 degrees from side warrants a 30 percent evaluation (minor) and 40 percent evaluation (major). Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). The plain language of 38 C.F.R. § 4.71a confirms that a Veteran is only entitled to a single disability rating under DC 5201 for each arm that suffers from limited motion of the shoulder joint. Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to "limitation of motion of" the arm. See 38 C.F.R. § 4.71a, DC 5201. The plain meaning of DC 5201, therefore, is that any "limitation of motion of" a single arm at the shoulder joint constitutes a single disability, regardless of the number of planes in which the arm's motion is limited. Yonek, 772 F.3d at 1359. VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Bolded text here and in the following two paragraphs indicates changes from the version prior to February 7, 2021. The language of Diagnostic Code 5201 was altered to read as follows: the minor, non-dominant shoulder is rated with limitation of motion to shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating; motion limited midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating; and flexion and/or abduction limited to 25 degrees or less from the side is rated at 30 percent. 38 C.F.R. § 4.71a (after Feb. 7, 2021). Diagnostic Code 5202 provides that malunion of the humerus with moderate deformity warrants a 20 percent evaluation. Malunion of the humerus with marked deformity warrants a 20 percent evaluation (minor) and 30 percent evaluation (major). Recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes, and guarding of movement only at shoulder level (flexion and/or abduction limited to 90 degrees), warrants a 20 percent evaluation. Recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 20 percent evaluation (minor) and 30 percent evaluation (major). Fibrous union of the humerus warrants a 40 percent evaluation (minor) and 50 percent evaluation (major). Nonunion of the humerus (false flail joint) warrants a 50 percent evaluation (minor) and 60 percent evaluation (major). Loss of head of humerus (flail shoulder) warrants a 70 percent evaluation (minor) and 80 percent evaluation (major). Effective February 7, 2021, DC 5202 was revised, providing clarification as to what degree of range of motion loss is required recurrent dislocations of the humerus with guarding of movement only at the shoulder level, quantifying it as flexion and/or abduction limited to 90 degrees. See Sabonis, supra. Diagnostic Code 5203 provides that malunion of the clavicle or scapula warrants a 10 percent evaluation. Nonunion of the clavicle or scapula without loose movement warrants a 10 percent evaluation. Nonunion of the clavicle or scapula with loose movement warrants a 20 percent evaluation. Dislocation of the clavicle or scapula warrants a 20 percent evaluation. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A small modification was also made to Diagnostic Code 5003 for degenerative arthritis, which was announced in a corrected final rule. See 85 Fed. Reg. 85523 (Dec. 29, 2020). Pertinent to this appeal, Diagnostic Code 5003 was modified in its title to now read "Degenerative arthritis, other than post-traumatic." 38 C.F.R. § 4.71a (after Feb. 7, 2021). No other changes are applicable for this particular appeal. Absent any Congressional intent or directive with regard to new or revised regulations, when a claim originates prior to the effective date of the new language but is decided after the effective date, VA will use the version that provides the Veteran a greater benefit. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Evidence and Analysis The Veteran seeks a higher evaluation for his service-connected left shoulder disability. The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations of movement he endures on a daily basis. VA treatment records reflect that the Veteran underwent surgery for the acromioclavicular arthritis of the left shoulder on March 11, 2009. A March 26, 2009 treatment note reflects that following the surgery the Veteran's recovery was on pace. The first examination pertinent to the issue and time period on appeal was provided by VA in February 2010. This VA examiner diagnosed AC separation with degenerative changes and tendonitis. The examiner noted the history of stress/strain of the left shoulder from the time that the Veteran was in the military, which was aggravated in 2004 with weight- lifting and disabled in December 2008 after a motor vehicle accident. The Veteran did not report flare ups. The examiner noted that the Veteran's right hand was his dominant hand. Left shoulder range of motion was 90 degrees each in flexion and abduction. There was no change in range of motion after three repetitions. The examiner estimated that there was functional loss based on the left shoulder disability, including moderate limitations on exercise and recreation. The examiner noted that the left shoulder gave way with no symptoms of instability, dislocation, subluxation, effusions or locking episodes. The examiner noted symptoms of pain, stiffness and weakness of the left shoulder joint. X-ray testing done for this examination indicated no fracture or dislocation, though it did reveal widening of the normal acromioclavicular distance. VA provided another examination for the Veteran's left shoulder in July 2010. This examiner continued the diagnosis of AC separation with degenerative changes and tendonitis. The Veteran reported flare ups as often as 3 times a day each lasting for 2 hours, which were precipitated by physical activity and alleviated by a pain reliever. During flare ups he described functional impairment as limiting his ability to lift his arm without radiating pain, limitation of motion of the joint which he described as popping, pain, discomfort and numbness. He rated his pain as an 8/10. Range of motion measurements of the left shoulder were 30 degrees in flexion and abduction; painful motion began at that angle for each measurement. Repetitive range of motion testing was not possible for the left shoulder joint because of severe pain with limited range of motion. The examiner noted weakness, tenderness and guarding of movement. The examiner noted that there were no signs of edema, instability, abnormal movement, effusion, or subluxation. The Veteran was most recently afforded a VA examination for his left shoulder disability in December 2019. This examiner diagnosed left shoulder strain, left shoulder impingement syndrome, left labral tear, including SLAP, acromioclavicular joint osteoarthritis and acromioclavicular joint separation of the left shoulder. The Veteran reported that he was experiencing a flare up on the date of the examination. He reported flare ups can be caused by typing and raising his arms above shoulder level, reaching away from his body and laying on his left shoulder. He reported that during flare ups he experienced increased pain and weakness and decreased range of motion. Active range of motion measurements were 45 degrees in flexion and 45 degrees in abduction, with the internal rotation and external rotation endpoints both at 10 degrees. Pain on movement was noted in flexion, abduction, and external rotation and caused functional loss. Audible crepitus was noted with movement of the left shoulder. Muscle strength testing was 4/5 on forward flexion and 3/5 on abduction with the reduction in muscle strength due entirely due to his service- connected left shoulder disability. No ankylosis of the scapulohumeral articulation joint was noted. Although a rotator cuff condition was suspected, the Veteran was unable to perform testing. The examiner noted a history of recurrent dislocation/subluxation of the glenohumeral (scapulohumeral) joint with infrequent episodes and guarding of movement only at the shoulder level. The examiner noted that the Veteran had a left should AC joint condition with dislocation which did not affect the range of motion of the shoulder. There was no loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. The examiner noted that diagnostic testing revealed degenerative changes in the left shoulder. The examiner noted that the left shoulder disability prevented him from being able to do physical labor, but that the Veteran could do sedentary work, and he was currently working in a sedentary field. No other significant findings were noted. 1. Whether the reduction of a disability rating from 30 percent to 20 percent for chronic AC separation of the left shoulder with associated degenerative changes and tendonitis status post-surgical repair from July 21, 2010, was proper. For the reasons discussed below the Board finds that the restoration of the Veteran's 30 percent rating for his left shoulder disability from July 21, 2010 is warranted. As explained above in further detail, the Veteran was afforded a VA examination on July 21, 2010. Following that examination, and during the pendency of the appeal, the AOJ issued a July 2015 rating decision increasing the Veteran's rating for his left shoulder disability from 20 percent to 30 percent under Diagnostic Code 5201, effective July 21, 2010. The issue of an increased rating for the left shoulder disability remained on appeal. When the matter was last before the Board in October 2018 the Board remanded this matter for further evidentiary development, including to afford the Veteran a new VA shoulder examination. The Veteran was afforded the new VA examination on December 4, 2019. While on remand, the RO issued a rating decision in August 2020 in which it determined that the July 2015 assignment of the increased 30 percent rating was the product of clear and unmistakable error (CUE). The RO determined that the July 2015 rating decision was clearly and unmistakably erroneous for granting the increased evaluation of 30 percent because there was no evidence at the time of the July 2015 VA examination that the Veteran's left shoulder flexion or abduction was limited to 25 degrees or less. The RO therefore reduced the Veteran's previously assigned rating of 30 percent for his left shoulder to 20 percent, effective November 1, 2020, which was the first month following 60 days from that decision. The RO also assigned a separate 20 percent disability rating under Diagnostic Codes 5003-5203 for left shoulder dislocation as secondary to his service- connected left shoulder disability, with an effective date of December 4, 2019. This combined action reduced the Veteran's combined disability rating from 70 percent to 60 percent effective November 21, 2020. As to the propriety of the rating reduction, at the outset, the Board points out that 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. After expiration of the 60-day period, if no hearing is requested, a rating action will be taken to effectuate the reduction based on the evidence of record. 38 C.F.R. § 3.105(e). Generally, the effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). Where, however, the reduction is because of an erroneous award based solely on administrative error or error in judgment, the effective date of reduction shall be the date of last payment. See 38 U.S.C. § 5112(b)(10) 3.500(b)(2). In the instant case, the RO never issued a rating action proposing the reduction of the Veteran's disability rating for his left shoulder disability. Instead, the RO determined that CUE had been made and informed him in the August 2020 rating decision that his 30 percent rating would be reduced to 20 percent effective November 1, 2020. Although the Board notes that the reduction did not take place until 60 days from that decision, the Veteran was not provided the opportunity to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105 (e). The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.105 (e) renders a rating decision void ab initio. Such an omission is erroneous and not in accordance with the law. See Greyzck, 12 Vet. App. at 292; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Because the RO failed to consider and apply the provisions of 38 C.F.R. § 3.105 (e) in its reduction of the Veteran's disability ratings for his left shoulder, the 30 percent rating must be restored, from July 21, 2010. 2. Entitlement to an increased disability rating in excess of 20 percent prior to July 21, 2010, for chronic AC separation of the left shoulder with associated degenerative changes and tendonitis status post-surgical repair, and an evaluation in excess of 30 percent therefrom. For the period prior to July 21, 2010 Initially the Board notes that the Veteran is right hand dominant, so for the Veteran's left shoulder disability, the Board must apply the minor ratings criteria under DC 5201. For the left shoulder disability currently rated under Diagnostic Codes 5003-5201 based on limitation of motion for the period prior to July 21, 2010, the Board finds that the Veteran's symptoms most closely approximate a 20 percent rating for the relevant period. The the worst finding of range of motion in flexion and abduction of the left shoulder was to 90 degrees during the February 2010 VA examination. A higher evaluation of 30 percent is not warranted for limitation of motion of the shoulder because such symptomatology has not been shown during the relevant period which shows limitation of motion to 25 degrees from the side under Diagnostic Code 5201. 38 C.F.R. § 4.71a. Additionally, the Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40, and 4.45 would warrant a higher rating. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); and DeLuca. While evidence shows that the Veteran had symptoms, e.g., pain, during left shoulder motion, as well as other symptoms upon activity, there is a lack of objective medical evidence showing that the Veteran suffered any measurable functional loss and/or limitation of motion that is not otherwise considered in the rating criteria. Accordingly, even with consideration of the doctrine of the favorable resolution of doubt, a rating in excess of 20 percent for this period for the service-connected left shoulder disability is not warranted during the relevant period. For the period from July 21, 2010 forward In consideration of the above, the Board finds that the evidence of record demonstrates that the Veteran's left shoulder disability most nearly approximates the current 30 percent rating for the period from July 21, 2010. This is based on the worst finding of range of motion in flexion and abduction to 30 degrees as measured during the July 2010 VA examination. While the Board notes a variety of measurements of ranges of motion in this period on appeal, the Veteran's worst measurements in flexion and abduction are indicative of a 30 percent rating. As such, under Diagnostic Code 5201, the Veteran is currently in receipt of the maximum rating for a minor extremity. As 30 percent is the highest schedular rating for limitation of motion, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. See Johnston, 10 Vet. App. 80 at 85. A higher evaluation of 40 percent pursuant to the rating criteria for Diagnostic Code 5200 is not warranted because such symptomatology has not been shown during the relevant time period which shows a finding of ankylosis of scapulohumeral articulation with unfavorable ankylosis that limits abduction to 25 degrees from the side. Conclusion on Left Shoulder Disability The Board has also considered other Diagnostic Codes for the Veteran's left shoulder during the periods on appeal. Initially the Board notes that as of the August 2020 rating decision the Veteran is already in receipt of the highest schedular rating, a 20 percent rating, under Diagnostic Codes 5003-5203 based on dislocation of the left shoulder. The Board has also considered whether a rating under Diagnostic Code 5202 is warranted based on the November 2019 VA examiner's recording of a history of recurrent dislocation/subluxation of the glenohumeral (scapulohumeral) joint with infrequent episodes and guarding of movement only at the shoulder level. The Board however finds that the Veteran cannot receive separate, compensable ratings under DCs 5201 and 5202. The critical element in permitting the assignment of ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Under DC 5201 and DC 5202, both contemplate limitation of motion of the arm. For example, the 20 percent rating under DC 5201 specifically contemplates motion of the arm limited to shoulder level. The 20 percent and 30 percent ratings under DC 5202 contemplate infrequent episodes of recurrent dislocation contemplates "guarding of movement only at shoulder level" or "guarding of all arm movements." The arm being limited to shoulder level or being limited in all movements specifically contemplates the arm not being able to move because of painful motion, which the Board finds is pyramiding with DC 5201, as DC 5201 specifically contemplates painful motion of the arm. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's left shoulder disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In reaching the above conclusion, the Board has not overlooked the Veteran's statements with regard to the severity of his service-connected left shoulder disability. In this regard, the Veteran was competent to report on factual matters of which he had firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Lay evidence was provided by the Veteran through submitted statements, treatment records and during the course of his VA examinations. However, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise to diagnose or observe, which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has accorded greater probative weight to objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports. See Woehlaert, 21 Vet. App. at 456 (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (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 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran contends that his service- connected disabilities preclude him from obtaining or sustaining substantially gainful employment. A total disability rating for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.15(a). If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16 (a). A claim for a total compensation rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In the instant case, for the period on appeal, the Veteran is service-connected for left shoulder dislocation associated with chronic separation of the left shoulder with associated degenerative changes at 20 percent disabling from December 4, 2019, chronic AC separation of the left shoulder at 20 percent disabling prior to July 21, 2010, minus a temporary period of total convalescence, and then at 30 percent disabling from July 21, 2010, left ankle tendonitis at 10 percent disabling from May 23, 2001, right ankle tendonitis at 10 percent disabling from May 23, 2001, bilateral pes planus at 10 percent disabling from May 23, 2001, tinnitus at 10 percent disabling from July 26, 2005, hypertension at 10 percent disabling from December 2, 2020, allergic rhinitis rated as noncompensable from May 23, 2001, scar status-post excision right cheek rated as noncompensable from May 23, 2001, bilateral hearing loss rated as non-compensable from October 8, 2015 and bilateral serous otitis media at 10 percent disabling prior to April 18, 2018 and then rated as noncompensable from April 18, 2018 forward. For the period from December 4, 2019 forward the Veteran meets the schedular criteria according to 38 C.F.R. § 4.16 (a)(3) with disabilities affecting a single body system. Namely, the left shoulder disability rated on limitation of motion at 30 percent disabling and the left shoulder dislocation at 20 percent disabling combine to over 40 percent from December 4, 2019. From this date the Veteran's combined disability rating is 70 percent. The Board notes that the Veteran last submitted a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in March 2010 at which time he indicated that he last worked full time on December 26, 2008. The Board notes that the most recent VA shoulder examination in December 2019 indicates that the Veteran was unable to perform physical labor, but that the Veteran could do sedentary work, and he was currently working in a sedentary field. Therefore, the Board finds that a remand of the TDIU claim is required to clarify whether he has worked at any point during the period on appeal, and if so, the details of such employment. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. Send the Veteran a new VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Verification, to be fully completed and returned to VA. If VA does not receive these completed documents, the issue will be adjudicated based upon the evidence of record. 3. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the issues that have been remanded. If the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.