http://www.va.gov/vetapp16/Files4/1630506.

txt
Citation Nr: 1630506
Decision Date: 07/29/16
DOCKET NO.
)
)

Archive Date: 08/04/16

08-25 230 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1.

Entitlement to an initial rating in excess of 20 percent for a right sh

2.

Entitlement to service connection for carpal tunnel syndrome (CTS) of t

3.

Entitlement to service connection for disc dissection of C6-C7 (cervica

REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
R. Kipper, Associate Counsel
INTRODUCTION

The Veteran served in the Army Reserves from 1983 to 2005, with various per
These matters come before the Board of Veterans' Appeals (Board) on appeal
In May 2015, the Board remanded this case for further development.
The issue of entitlement to service connection for an acquired psychiatric

The issues of entitlement to service connection for right hand CTS and a ce
FINDINGS OF FACT
1.

The Veteran's service-connected right shoulder disability is not shown

2.

Prior to September 9, 2014, the Veteran's right shoulder disability was

3.

Since September 9, 2014, the Veteran's right shoulder disability has be

CONCLUSIONS OF LAW
1.

Prior to the Veteran's entry onto a period of ACDUTRA in August 2004, t

2.

Prior to September 9, 2014, the criteria for a rating in excess of 30 p

3.

Since September 9, 2014, the criteria for a rating of 40 percent, but n

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for
VA also has a duty to assist the Veteran in the development of the claim.

Here, the record reflects that VA made reasonable efforts to obtain relevan

The Court has also held that VA's statutory duty to assist the Veteran incl

In this case, the Veteran was afforded VA examinations to evaluate her righ
The duty to assist has therefore been satisfied and there is no reasonable
In light of the foregoing, the Board finds that there is no further action
II. Increased Rating

Disability ratings are determined by the application of the VA's Schedule f

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. 4.

Where, as here, the question for consideration is the propriety of the init

In making all determinations, the Board must fully consider the lay asserti
The Board has reviewed all of the evidence in the Veteran's claims folder.
A. Reduction for Preexisting Disability

In the June 2006 rating decision from which this appeal ensued, the RO gran

As an initial matter, the record shows uniformly that the Veteran entered a

In such a case, the rating assigned will reflect only the degree of disabil

Here, the RO justified the 10 percent reduction based upon a finding that t

On further review, the Board finds the reduction in rating in this case was

The evidence from prior to Veteran's August 2004 period of ACDUTRA shows th

In May 2006, the Veteran underwent a VA examination.

She reported that fol

This evidence does not support a compensable rating under any diagnostic co

The Board recognizes that the Court, in DeLuca v. Brown, 8 Vet. App. 202 (1
Here, the evidence does not support a compensable rating due to functional

In short, a right shoulder disability that was 10 percent disabling was not
B. Disability Rating for the Right Shoulder

Turning now to the evidence of record since the grant of service connection

On examination, range of motion testing revealed forward flexion to 110 deg

A December 2006 worker's compensation examination shows that the Veteran re

Subsequent private treatment records show continuing complaints of right sh

In August 2010, the Veteran underwent a right shoulder arthroscopy.
A November 2010 private physical therapy record shows that the Veteran had

A February 2011 private treatment record shows that the Veteran reported ri
The Veteran was afforded a VA examination in July 2011.

The Veteran report

On examination, there was atrophy of the anterior, posterior, and lateral d

A December 2011 private treatment record shows that the Veteran was working
An August 2012 private treatment record shows that the Veteran was working

A December 2013 private treatment record shows that the Veteran reported in
A June 2014 private treatment record shows 120 degrees of flexion.

In an August 2014 statement, the Veteran reported that her right shoulder s
A September 2014 private treatment record shows that the Veteran was given

A November 2014 private treatment record shows that the Veteran reported ri

A February 2015 private treatment record shows that the Veteran was seen fo
In February 2015, the Veteran's private physician completed a Shoulder and

The physician indicated that the Veteran was not able to perform range of m
The physician reported that muscle strength testing was not conducted, but

In a February 2015 letter accompanying the Shoulder and Arm Conditions Disa

A June 2015 VA treatment record shows that the Veteran reported constant pa

Diagnostic Codes 5200 through 5203 address disability ratings for the shoul

Diagnostic Code 5200 provides for the evaluation of a shoulder or arm disab

Diagnostic Code 5201 provides that limitation of motion of the major arm at

With respect to the major arm, Diagnostic Code 5202 provides that impairmen
Under Diagnostic Code 5203, a 20 percent evaluation, the maximum available

Diagnostic Code 5010 provides that arthritis due to trauma that is substant

38 C.F.R. 4.71, Plate I, defines normal ranges of motion of the shoulder

When evaluating musculoskeletal disabilities, VA may, in addition to applyi

Having carefully considered the Veteran's contentions in light of the evide

Additionally, for the entire appeal period, the Veteran's right shoulder di
Moreover, prior to September 9, 2014, the evidence in this case shows that

The Board has also considered whether entitlement to a higher evaluation is

The Board also notes that separate ratings are not available under Diagnost
However, since September 9, 2014, the Board finds that the Veteran's right

In this regard, a September 9, 2014 private treatment note indicates that t

The above evidence, including the Veteran's competent lay statements, refle

The Board has considered whether a higher rating is appropriate at any poin

A higher rating would also be warranted under Diagnostic Code 5200 for unfa

As noted above, separate ratings are not available under Diagnostic Codes 5

The Board has also considered whether the Veteran's disability would suppor

Moreover, the Board finds that the assignment of a separate rating based on

The Board concludes that the objective medical evidence and the Veteran's s
The Board also has considered whether the Veteran is entitled to a greater

According to the regulation, an extraschedular disability rating is warrant

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry f

As discussed in detail previously, the Veteran's symptomatology is fully ad

The Board also notes that under Johnson

v. McDonald, 762 F.3d 1362 (2014),

Lastly, a request for a total disability rating based on individual unemplo

ORDER

Entitlement to a disability rating of 30 percent, but no higher, for a righ

Entitlement to a disability rating of 40 percent, but no higher, for a righ

REMAND

After a careful review of the Veteran's claims file the Board finds that fu

The Veteran contends that her cervical spine condition and right hand CTS a

In the May 2015 remand, the Board found that VA opinions obtained in May 20

In February 2016, the Veteran was afforded a VA Cervical Spine Conditions e

The examiner opined that it is less likely as not that the Veteran's cervic

The Board finds that this opinion is inadequate as it was based upon a mere

Regarding secondary service connection, the examiner opined that it is less

The Board finds that the opinion is inadequate as there was no adequate rat

As the February 2016 VA opinion does not comply with the Board's remand dir

Also in February 2016, the Veteran was afforded a VA Peripheral Nerves Cond
The examiner opined that it is less likely as not that the Veteran's right

The Board finds that this opinion is inadequate as it was based upon a mere

Regarding secondary service connection, the examiner opined that it is less

The Board finds that the opinion is inadequate as there was no adequate rat

As the February 2016 VA opinion does not comply with the Board's remand dir

The RO/AMC should also obtain and review any outstanding VA and private tre
Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the Veteran's claims file all outstanding VA t

2. After all available records have been associated with the claims file, o

After reviewing the claims file, and if necessary examining the Veteran, th

(a) Offer an opinion as to whether it is at least as likely as not (i.e. 50

In providing this opinion, the examiner is asked to consider, and comment o

(b) Regardless of the response to question (a), offer an opinion as to whet

The examiner's report must reflect consideration of the Veteran's entire do

3. Thereafter, the AOJ must review the claims file to ensure that the foreg

4. Following the completion of the foregoing, the RO/AMC should readjudicat

The Veteran has the right to submit additional evidence and argument on the
This claim must be afforded expeditious treatment.

______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs

The law requires that a