Citation Nr: 18132356
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-32 423
DATE:	September 6, 2018
ORDER
Service connection for chronic obstructive pulmonary disease is dismissed.
An increased rating for headaches is dismissed.
An increased rating for hearing loss is dismissed. 
New and material evidence having been received, the petition to reopen the claim for service connection for diabetes mellitus, type II, is granted.
Service connection for coronary artery disease is granted.
Service connection for diabetes mellitus, type II is granted.
A separate rating for right shoulder degenerative joint disease is granted.
REMANDED
Entitlement to a total disability rating based on unemployability is remanded.
FINDINGS OF FACT
1. In a July 2004 rating decision, the RO denied the claim for service connection for diabetes mellitus, type II. 
2. Additional evidence received since the July 2004 rating decision is new and related to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus, type II.
3. Resolving all reasonable doubt in favor of the Veteran, exposure to herbicides at U-TAPAO Royal Thai Air Force Base (RTAFB) in Thailand has been established based on the competent and credible evidence of record in this case. 
4. The Veteran has a diagnosis of coronary artery disease, which is presumed related to his in-service herbicide exposure during his active military service in Thailand.  
5.  The Veteran has a diagnosis of diabetes mellitus, type II, which is presumed related to his in-service herbicide exposure during his active military service in Thailand.   
6.  The Veteran’s right shoulder disability was most nearly approximated at his shoulder level. 
CONCLUSIONS OF LAW
1. The July 2004 rating decision denied service connection for diabetes mellitus type II, the Veteran did not file a notice of disagreement, and the decision is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.156, 20.1100.  
2. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 
3. The criteria for service connection for coronary artery disease, as due to exposure to herbicides, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
4. The criteria for service connection for diabetes mellitus, type II, as due to exposure to herbicides, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
5. The criteria for a separate rating for a right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, DC, 5003, 5201–5203.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service in the United States Air Force from March 1967 to February 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from August 2010, March 2012, and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in September 2016. A transcript is of record. 
The Board also notes that in his hearing testimony and subsequent written argument, the Veteran and his attorney raised the issue of clear and unmistakable evidence (CUE) in multiple prior rating decisions. Specifically, his attorney argued that the RO committed CUE in not granting a separate compensable rating for his right shoulder disability. The issue of CUE has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and the AOJ is alert to take appropriate action, in accordance with the amended provisions for filing a claim on or after March 24, 2015. 38 C.F.R. § 19.9(b); See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). 
 
Issues Withdrawn
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. For the veteran to withdraw an issue that is on appeal on the record during a Board hearing, the withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the veteran. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959.
In the present case, the Veteran indicated that he wished to withdraw the issues of service connection for chronic obstructive pulmonary disease, and increased ratings for headaches and hearing loss. To effectuate this, the Veteran stated on the record at the September 2016 Board hearing , after the case was certified to the Board for appeal, his request that these issues be withdrawn. 
During the September 2016 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of service connection for chronic obstructive pulmonary disease, and increased ratings for headaches and hearing loss. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those issues. Moreover, the Veteran was accompanied by his private attorney who affirmed the withdraw. The Veteran’s full understanding of the consequences is shown based on the Veteran’s affirmative answer to withdrawing the issues. Additionally, the attorney and Veteran went through each issue that remained on appeal, and the Veteran had the opportunity to discuss any additional matters or concerns at the conclusion of the hearing and did not.  See Acree v. O’Rourke, 
891 F.3d 1009 (Fed. Cir. 2018).
The Board notes that in a subsequently filed attorney brief, the attorney listed the issues that were being withdrawn as increased ratings for hearing loss and headaches. However, she addressed the issues that remained on appeal in written argument, and did not address the issue for COPD. As such, the Board finds the issue is withdrawn. 
As the appeal with regard to these issues has been withdrawn, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed.
New and Material Evidence
1. Whether new and material evidence has been submitted for diabetes mellitus, type II.
Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239, 239–40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. 
New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). 
For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. Id.
A July 2004 rating decision denied service connection for diabetes mellitus, type II. The RO noted that the Veteran’s service treatment records did not show diabetes mellitus, nor did he have in-country service in Vietnam. The Veteran did not appeal this denial, and the decision became final. 38 C.F.R. § 20.1100. 
Since the final denial, the Veteran submitted information regarding his service at Thai Air Force bases during the Vietnam era, which addresses his exposure to herbicides. This evidence is new and material to the Veteran’s claim as it addresses the in-service event or injury element, to include a possible nexus between his diabetes mellitus, type II, and the presumptive exposure to herbicide agents. 
As such, the claim is reopened.
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 
1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 
3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. 
Service incurrence for certain diseases, including ischemic heart disease (to include coronary artery disease) and diabetes mellitus, type II, will be presumed on the basis of association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. 
VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VBA Adjudication Manual, M21-1, IV.ii.2.C. 
VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidence in the Project CHECO Southeast Asia Report: Base Defense in Thailand (CHECO Report). Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. 
The majority of troops in Thailand during the Vietnam Era were stationed at the RTAFB at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air bases perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1, M21-1, IV.ii.1.H.5.b.
Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. 
The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990). 
2. Entitlement to service connection for coronary artery disease.
The Veteran contends that his coronary artery disease is due to exposure to herbicides during service in Thailand. 
The Veteran has a diagnosis of coronary artery disease.  
The Veteran’s military service records show that he was stationed at U-TAPAO RTAFB, Thailand in 1969 as a ground crew member. His DD-214 reflects his military occupational specialty (MOS) was an aircraft mechanic. During his September 2016 hearing, he explained that he largely worked near the perimeter of the base. He testified that he could see the defoliation for 100 yards on both sides of the perimeter fence. He noted that the defoliation was done to the edge of the flight line. He also testified that whenever he was off-duty he would leave the base.  
The Board finds the Veteran to be both competent and credible in detailing his role as an aircraft mechanic at U-TAPAO RTAFB base in Thailand, and how he may have been exposed to herbicide agents, to include Agent Orange. He has been consistent throughout the period on appeal regarding his role as an aircraft mechanic and his potential for exposure to herbicides. 
The Board notes that the RO attempted to verify the Veteran’s herbicide exposure. In March 2014, a VA memorandum indicated a formal finding of lack of verification of exposure to herbicides while stationed in Thailand. However, the Board is ultimately persuaded by the Veteran’s competent and credible testimony describing his in-service experiences. Despite the fact that there is no clear evidence of herbicide exposure due to his Thailand service shown in the record, the Veteran has been consistent in his reported work obligations, which required him to be exposed to the perimeter during his service at the base. His statements are consistent with the circumstances and conditions of his service at the U-TAPAO RTAFB in Thailand during the Vietnam era. 38 U.S.C. § 1154(a).
The evidence of record clearly establishes that the Veteran had service at one of the designated Thailand military bases. He also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. Furthermore, he has provided competent testimony that establishes service near the base perimeter, and the Board finds such testimony to be consistent with the circumstances, places, and types of his service. There is no evidence in the file to doubt these statements and so the Board finds the Veteran’s account of herbicide exposure during service to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). 
Resolving doubt in the Veteran’s favor, this evidence establishes on a facts-found basis that the Veteran was exposed to herbicides while serving at U-TAPAO RTAFB. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. Given the above, the Board concludes that the Veteran is entitled to presumptions based on exposure to herbicides. See 38 C.F.R. §§ 3.307, 3.309. 
Because coronary artery disease is a condition for which service connection can be granted on a presumptive basis when exposure to herbicides is established, entitlement to service connection for coronary artery disease is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.
3. Entitlement to service connection for diabetes mellitus, type II.
The Veteran contends that his diabetes mellitus is due to exposure to herbicides during service in Thailand. As noted above, the Veteran is entitled to the presumptive basis for exposure to herbicides, and he has a current diagnosis of diabetes mellitus, type II.
Because diabetes mellitus, type II, is a condition for which service connection can be granted on a presumptive basis when exposure to herbicides is established, entitlement to service connection for diabetes mellitus, type II, is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.
Increased Rating
Disability ratings are determined by applying the criteria set forth in the 
VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 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 C.F.R. § 4.3. 
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). 
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 
The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).
Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Codes 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202) or the impairment of the clavicle or scapula (Diagnostic Code 5203). Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. 4.71a, Plate I. Diagnostic Code 5200 rates ankylosis of the scapulohumeral joint. 
Where arm limitation of motion is limited to 25 degrees from the side, a 40 percent evaluation is assigned for the major side under diagnostic code 5201. Limitation of motion midway between the side and shoulder level contemplates a 30 percent evaluation for the major side, and limitation of motion at shoulder level contemplates a 20 percent evaluation for the major side. 38 C.F.R. §4.71a, DC 5201. Additionally, under Diagnostic Code 5202, for impairment of the humerus, a 20 percent rating is granted when there is malunion, with moderate deformity, for the major arm; a 30 percent rating is warranted when there is marked deformity of the major arm. Also under Diagnostic Code 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes, and guarding of movement only at shoulder level; a 30 percent rating is granted for the major arm when there are frequent episodes and guarding of all arm movements. For fibrous union of the major arm a 50 percent rating is assigned for the major arm. A 60 percent rating is warranted for nonunion (false flail joint) of the major arm. An 80 percent rating is warranted for loss of head of (flail shoulder) for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Further, under Diagnostic Code 5203, for impairment of the clavicle or scapula in the major arm, a 10 percent rating is granted for malunion or nonunion without loose movement and a 20 percent rating is granted for nonunion with loose movement or for dislocation. 
Diagnostic Code 5003 provides that 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 (Diagnostic Code 5200, etc.). 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 the application of each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. §4.71a, Diagnostic Code 5003.
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.”).
However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss—i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’—including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).
4. Entitlement to an increased rating for right shoulder degenerative joint disease
The Veteran asserts that his right shoulder degenerative joint disease is worse than the currently assigned 20 percent rating. 
The Veteran is rated under 5010-5202 for degenerative joint disease of the right shoulder. 
The Veteran underwent a VA examination for his right shoulder disability in August 2013. The examiner noted that he is right hand dominant, and the Veteran reported flare-ups where his right arm would be useless. He had right shoulder flexion of 70 degrees with pain, and abduction of 80 degrees with pain. He was able to perform three times repetitive use testing with the same range of motion. He had functional loss/impairment with weakened movement and pain on movement. Localized tenderness or pain on palpation was recorded, and he had guarding of the shoulder. Reduced muscle strength was reported with abduction and forward flexion of 4/5 — active movement against some resistance. 
No ankylosis was found. The examiner reported no history of mechanical symptoms or recurrent dislocation. The examiner did not test for rotator cuff conditions. Additionally, no AC joint condition or tenderness was documented. The examiner also noted that there were contributing factors of pain, weakness, fatigability, and/or incoordination and there is additional limitation of functional ability of the shoulder joint during flare-ups or repeated use over time. 
The additional limitation as described was not feasible to describe and the examiner could not provide additional range of motion loss because the examiner was unable to evaluate at the time of the flare-up.
Notwithstanding that the VA examination discussed failed to test passive range of motion and range of motion in non-weight-bearing conditions, the Board finds that the examination nevertheless is useful to evaluate the Veteran’s shoulder disability picture.  Passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated.  It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement.  Comparisons between passive range of motion and active range of motion provide information about the amount of motion permitted by the associated joint structures (passive range of motion) relative to the individual’s ability to produce motion at a joint (active range of motion). CYNTHIA NORKIN & D. JOYCE WHITE, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 8-9 (2016). 
Testing the joint under weight-bearing conditions involves movement of the body against gravity.  J. Randy Jinkins, et. al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005).  When evaluating range of motion, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present.  Id. at 1823.
Because there is no indication that the structural integrity of the Veteran’s right shoulder is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran’s range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence.
Additionally, the Veteran testified at the September 2016 Board hearing regarding his right shoulder disability. He and his spouse testified that he has difficulty lifting coffee or tea cups in addition to reaching for objects above his head because of pain. 
After review of the competent and probative evidence, the Board finds that a higher rating under 5202 is not warranted, but a separate rating of 20 percent under 5201 is warranted. At the August 2013 VA examination, the Veteran had right shoulder abduction of 80 degrees which is most nearly approximated by a
 20 percent rating – limitation of motion at shoulder level under 5201. The Board notes that the Veteran has more recently had improved range of motion during physical therapy in 2016; however, he has also testified as to his difficulty in lifting objects as well as raising his arm. As such, the Board finds that when resolving all reasonable doubt in favor of the Veteran, that a separate 20 percent rating for limitation of motion is warranted. 
Additionally, with regard to Diagnostic Code 5202, a rating higher than 20 percent is not warranted. The Veteran testified that he has infrequent locking and guarding — once every three to four months. Moreover, fibrous union of the humerus, and malunion of the humerus are not shown. Ankylosis has not been shown, thus a rating is not warranted per Diagnostic Code 5200. Finally, a rating pursuant to Diagnostic Code 5203 would not provide a basis for a higher rating. 
In consideration of DeLuca, the Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 38. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id.; 38 C.F.R. § 4.40. Here, the findings reflected in the VA examination reports and treatment records do not support a rating in excess of the two 
20 percent ratings. Despite the Veteran’s pain on movement, this does not result in a separate and/or higher rating unless it actually results in additional functional loss. DeLuca, 8 Vet. App. at 204-07. In consideration of the DeLuca factors, while it is clear that the Veteran experienced pain and the accompanying limitations due to his right shoulder disability, the 20 percent disability ratings took into consideration the Veteran’s functional loss associated with his right shoulder. Therefore, the Board finds that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not provide a basis for an increased rating.
REASONS FOR REMAND
1. Entitlement to a total disability rating based on unemployability is remanded.
The above grant of service connection for coronary artery disease and diabetes mellitus, type II, may affect the claim for TDIU, as TDIU is based on the current evaluations of all of the Veteran’s service-connected disabilities. Thus, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The RO must first implement the Board’s above grant of service connection for coronary artery disease and diabetes mellitus, including assigning a disability rating and effective date before readjudicating the TDIU claim.  The Board notes that a VA Form 21-8940 from 2003 is of record and finds that the Veteran is to be request to complete another one to ensure the most update to date information.  
The matter is REMANDED for the following actions:
1. Implement the Board’s above grant of service connection for coronary artery disease and diabetes mellitus, including assigning a disability rating and effective date.
2. Request that the Veteran complete an updated 
VA Form 21-8940.

(CONTINUED ON THE NEXT PAGE)

 
3. Thereafter, and after completing any other development deemed necessary, the remanded claim for TDIU must be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review.

 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G. Morales, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.