Citation Nr: 22013588 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 13-31 014 DATE: March 10, 2022 REMANDED For the period on appeal from February 1, 2017, an increased disability rating of greater than 40 percent for the service-connected right shoulder degenerative joint disease with impingement (right shoulder disability) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active duty service from March 1976 to March 1980. The instant issue is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The issue has been before the Board of Veterans' Appeals previously. In the most recent January 2021 Board decision, the Board denied a rating in excess of 40 percent for the right shoulder disability from February 1, 2017. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims. In a November 2021 Joint Motion for Remand (JMR), the parties to the JMR concluded that, by relying on an inadequate medical examination, the January 2021 Board decision did not ensure VA's duty to assist was met. The Board notes that there is a separately pending Board appeal in the modernized review system, also known as the Appeals Modernization Act (AMA), for an earlier effective date for the right shoulder disability. This appeal is pending a virtual hearing; accordingly, the earlier effective date issue will be addressed in a separate Board decision. Rating the Right Shoulder Disability from February 1, 2017 is Remanded. The parties to the JMR agreed that the Board erred in relying without explanation on an August 2018 VA examination that was not compliant with the testing requirements of Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (requiring an examiner to estimate the veteran's functional loss due to repeated use over time and flare-ups based on all evidence of record). In the August 2018 VA examination, the VA examiner wrote that he could not provide an opinion as to whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time because the "veteran is not being examined after repeated use over time." To the extent that the VA examiner did not provide an estimate of the functional loss without further explanation, as required under Sharp, the opinion is inadequate in this regard. Additionally, the representative points out in a February 2022 brief that certain physical therapy private treatment records suggest that the Veteran may experience flare-ups. See, e.g., November 2017 Private Treatment Records. Although the August 2018 VA examination denied the presence of flare-ups, the examiner should inquire into them again. If the Veteran reports flare-ups, the examiner should provide an estimate of the additional functional loss during the flare-ups. Extraschedular Rating Claim Raised But Not Referred In a February 2022 letter, the representative stated that an extraschedular rating for the right shoulder disability was raised by the record. The representative did not state what specific functional impairments were allegedly not covered by the Rating Schedule. The representative wrote that, because the Veteran was found disabled by the Social Security Administration in part because of the right shoulder disability and because VA granted a TDIU on an "extraschedular" basis (38 C.F.R. § 4.16(b)) from September 21, 2012, to July 18, 2014, and pursuant to 38 C.F.R. § 4.16(a) from July 18, 2014, these conclusions demonstrated that the application of the Rating Schedule was inadequate. The representative noted that the Veteran was found to only be able to "occasionally reach bilaterally overhead or in front; and 5-10 percent of the time would not be able to reach at all." The Board finds that referral to the Director, Compensation and Pension Service, for consideration of an extraschedular rating is not warranted. The finding that a TDIU is warranted is in and of itself an "extraschedular" (4.16(b)) finding that argues against a separate "extraschedular" (3.321(b)) rating for the right shoulder disability. Additionally, for the reasons described below, the Rating Schedule already fully compensates the Veteran for the functional impairments related to the right shoulder disability, even due to the significant limitation of movement, which is encapsulated by the Rating Schedule. Further testing on remand will only show symptoms, findings, and limitations of motion and function, including during flareups, that are fully encompassed by the VA rating schedule and all the regulatory orthopedic rating regulations in 38 C.F.R. Part 4 that guide the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The opinions sought on remand also pertain to additional limitations of motion and function during flareups. All such contemplated impairments and measures and opinions on examination will create evidence that bears directly and only on schedular rating criteria. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. 38 U.S.C. § 1155. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). Turning to the first step of the Thun extraschedular analysis, the Board finds that all the symptomatology and impairment caused by this Veteran's right shoulder disability are specifically contemplated by the extensive joint (orthopedic) schedular rating criteria, either the multiple potentially applicable diagnostic codes with alternate rating possibilities, and the orthopedic rating factors incorporated into the rating schedule via regulatory provisions such as 38 C.F.R. §§ 4.40, 4.45, 4.59. The schedular rating criteria, with all orthopedic rating principles incorporated, contemplate the Veteran's right shoulder disability, the symptoms associated with such disability including limitations of motion due to multiple orthopedic factors, and contemplate impairment of should function. Difficulty reaching is, in essence, a manifestation of limitation of motion. The Veteran has not asserted any functional limitations or symptoms posed by the right shoulder disability that are not capable of being rated by the VA rating schedule, or that in fact will not be considered when rating the right shoulder under the schedular rating criteria. The schedular rating criteria pertaining to the Veteran's right shoulder disability provide for ratings based on limitation of motion, including due to pain and other orthopedic factors (DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59) such as weakness, incoordination, and fatigability. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell, 25 Vet. App. at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatologies of the ailments). In this case, considering the lay and medical evidence, the right shoulder disability has been manifested by painful limitation of motion of the right shoulder and difficulty reaching. The remand for additional testing and evidence concerning the limitations of motion with respect to flare-ups and repeated use over a period of time will encapsulate all the limitation of motion asserted by the Veteran and difficulty reaching. Because the various schedular rating criteria are adequate to rate the right shoulder disability in this case, there remain no identified symptoms or functional impairments that are not rated or ratable under the schedular rating criteria. For these reasons, neither the invocation of "extraschedular" rating nor the evidence suggests exceptional or unusual disability picture to render impractical the application of the regular schedular standards. Accordingly, there is no factual basis for an extraschedular rating to warrant a referral to the Director, Compensation and Pension Service. The issue of a (schedular) increased disability rating of greater than 40 percent for the service-connected right shoulder disability is REMANDED for the following actions: Schedule a VA examination with a qualified examiner. After conducting a new examination, the VA examiner should ensure that the following information is provided: (a.) What is an estimate (in terms of range of motion lost) of the degree of functional impairment of the right shoulder due to repeated use over time? (b.) Does the Veteran experience flare-ups of the right shoulder disability? If so, what is an estimate (in terms of range of motion lost) of the degree of functional impairment of the right shoulder due to flare-ups? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.