Citation Nr: 21002437 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-33 195 DATE: January 13, 2021 ORDER An increased initial rating in excess of 20 percent disabling for degenerative arthritis of right shoulder claimed as right shoulder condition is denied. FINDING OF FACT The Veteran’s degenerative arthritis of the right shoulder, the major extremity, manifests with limitation of motion and painful motion at shoulder level. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for degenerative arthritis of right shoulder claimed as right shoulder condition have is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2011 to January 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision that granted service connection for degenerative arthritis of the right shoulder (right shoulder condition) with an initial rating of 10 percent disabling. Subsequently, a June 2016 rating decision increased the rating for the right shoulder to 20 percent, effective July 17, 2015 (the same effective assigned for the grant of service connection). In October 2019, a hearing was held in this matter via videoconference from Indianapolis, Indiana before the undersigned Veterans’ Law Judge. A transcript of the hearing has been associated with the electronic file. In the January 2020 Board decision, this matter was remanded for a VA examination because of the Veteran’s hearing testimony of worsening and the incomplete April 2019 examination. Since the Veteran was provided an adequate examination in May 2020, the Board finds that this matter is ready for adjudication. An increased initial rating in excess of 20 percent disabling for degenerative arthritis of right shoulder claimed as right shoulder condition is denied. The Veteran contends that the initial evaluation of his right shoulder condition was inadequate because his right shoulder condition is much worse was documented during his February 2016 examination. See NOD received 5/16/2016. As noted above, the Veteran was initially assigned a 10 percent rating March 2016, and subsequently assigned a 20 percent rating in June 2016 due to painful motion of the arm at shoulder level ans degenerative changes in his right shoulder. The Veteran’s degenerative arthritis of the right shoulder (right shoulder disability) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “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.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, in Burton, the Court held that limitations of both flexion and abduction of the shoulder arise from one disability, and the law does not permit separate ratings under such circumstances. Id. at 6. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a right shoulder disability. In May 2020, the Veteran was given another C&P Examination. The May 2020 examiner reviewed the Veteran’s e-folder and noted his reports of functional loss, which he stated left him unable to lift more than 25 pounds and fully extend his arms. The evidence of record shows that the Veteran is right-handed. See C&P Exam received 5/13/2020 at page 3. The May 2020 examiner diagnosed the Veteran with rotator cuff tendonitis and acromioclavicular joint osteoarthritis in his right shoulder. See C&P Exam received 5/13/2020 at page 2. The Veteran’s initial range of motion (ROM) for flexion and abduction were 0 to 110 degrees and his external and internal rotation were 0 to 60 degrees. Id. at page 4. With repetitive use testing, the Veteran’s ROM for flexion and abduction were 0 to 90 degrees and 0 to 50 degrees for external and internal rotation. Id. at page 5. The examination was not taken during a flare up. However, the examiner described ROM due to flare ups as flexion and abduction of 0 to 80 degrees and external and internal rotation of 0 to 40 degrees. Id. at page 6. The Board finds that the examination is adequate because the May 2020 examiner reviewed the Veteran’s claim file and preformed all ROM testing required, as well as remarking on evidence of pain on passive ROM and non-weight bearing testing. It is evident that the May 2020 examiner considered the Veteran’s lay statements of functional loss, including his statement of functional loss during a flare up, which he said occurred daily and was precipitated by overuse. See C&P Exam received 5/13/2020 at page 3. Further, the Board finds that the January 2020 Board remand instructions were substantially complied with since the May 2020 examiner stated that an MRI was not necessary because of his MRI in July 2015 that showed that he was unable to do work overhead. See C&P Exam received 5/13/2020. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, the Board finds although a worsening is evident from the May 2020 C&P Exam when compared with prior C&P Examinations, the measurements do not more nearly approximate the next-highest rating, arm limitation of motion midway between the side and shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5201. In fact, the ROM measurements even during a flare up do not show limitation of motion midway, which would be equivalent to 45 degrees and not the 80 degrees the May 2020 examiner described. See C&P Exam received 5/13/2010 at page 6. Additionally, the Board finds that the Veteran’s testimony that he is unable to use his right hand when driving because he cannot fully make a sharp left or lift his shoulder overhead implicates that his functional loss is at shoulder level, which is consistent with the May 2020 examiner’s findings. See Hearing Transcript at page 4 and 8. Controlling cases state that DC 5201 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 Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013); see also Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (rejecting argument that one disability manifesting in multiple symptoms could receive two separate ratings within a particular diagnostic code “unless the regulation expressly provides otherwise”). Diagnostic Code 5201, does not expressly provide for multiple disability ratings and, accordingly, the Veteran is not entitled to more than one disability rating under that Diagnostic Code. Indeed, Diagnostic Code 5201 provides for compensation based on at what distance from the body, not the plane in which (i.e., flexion or abduction), the disability manifests. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the May 2020 examiner found no ankylosis, no impairment of the humerus, nor any clavicle, scapula, acromioclavicular or sternoclavicular joint conditions that would implicate another diagnostic code. See 38 C.F.R. § 4.71a. (Continued on the next page)   In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for his right shoulder disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.