Citation Nr: 21062172 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 19-15 934A DATE: October 6, 2021 ORDER A rating higher than 20 percent prior to March 18, 2021, and higher than 30 percent thereafter for right shoulder bursitis is denied. REMANDED A rating higher than 70 percent for major depressive disorder with psychotic features is remanded. FINDINGS OF FACT 1. Prior to March 18, 2021, the Veteran's right shoulder bursitis is manifested by limited movement of the major extremity at shoulder level. 2. From March 18, 2021, the Veteran's right shoulder bursitis is manifested by limited movement of the major extremity midway between side and shoulder level. CONCLUSIONS OF LAW 1. Prior to March 18, 2021, the criteria for a rating higher than 20 percent for right shoulder bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5019-5201. 2. From March 18, 2021, the criteria for a rating higher than 30 percent for right shoulder bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5019-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Navy from August 1963 to August 1967 and from February 1968 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Board remanded this matter for further development. Bursitis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. For musculoskeletal disabilities, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). The Board notes that the regulations pertaining to musculoskeletal disabilities were revised effective February 7, 2021. Claims such as this pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from this date. The rating criteria for bursitis were not changed by when the regulations pertaining to musculoskeletal disabilities were revised. The rating criteria for limitation of motion of the arm were revised to clarify the degree of motion necessary for each rating. The evidence of record shows that the Veteran is right-handed, therefore, his right arm is the major extremity, and his left arm is the minor extremity. See 38 C.F.R. § 4.69. For VA purposes, normal range of arm motion is flexion 0 to 180 degrees; abduction 0 to 180 degrees; external rotation 0 to 90 degrees; and internal rotation 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran's right shoulder bursitis is rated as 20 percent disabling for the period prior to March 18, 2021 and 30 percent disabling thereafter under diagnostic code (DC) 5019-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. §§ 4.20, 4.27. DC 5019 corresponds with bursitis. Bursitis is to be rated on limitation of motion of the affected parts as degenerative arthritis. Under DC 5201 a 20 percent rating is assigned for limited motion of the major extremity at shoulder level (flexion and/or abduction limited to 90 degrees). A 30 percent rating is assigned for limited motion of the major extremity midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A maximum 40 percent rating is assigned for limited motion of the major extremity to 25 degrees from side. 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." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The Veteran contends that a higher rating is warranted for his bursitis. For the following reasons, the Board disagrees and finds that a higher rating is not warranted. In November 2017, the Veteran underwent a VA examination. The examiner remarked that the Veteran claimed he was unable to move his shoulder in any axis during the examination but noted this appeared factitious as the Veteran was observed using the shoulder in a variety of ways, albeit with all motions below the 90 degrees horizontal plane. The Veteran's symptoms were pain that is aggravated by change of weather and by lifting anything more than ten pounds. The examiner found the Veteran to have a functional loss of being unable to lift more than ten pounds. Range of motion testing was not completed as the Veteran refused to move his right shoulder. After remand, the Veteran underwent another VA examination in March 2021. His symptoms were constant pain, an inability to life overloads, and inability to lift more than ten pounds. The Veteran reported flare-ups that last two days, precipitated by lifting. The examiner found functional loss of not being able to work or lift more than ten pounds. Range of motion testing was performed revealing flexion to 90 degrees and abduction to 50 degrees. After three repetitions, range of motion was flexion to 45 degrees and abduction to 35 degrees. The examiner estimated range of motion after repeated use to be flexion to 50 degrees and abduction to 35 degrees. The examiner also estimated range of motion during a flare-up to be flexion to 50 degrees and abduction to 35 degrees. VA treatment records are available, but they are limited in their discussion of the Veteran's right shoulder bursitis. The Board notes though that the Veteran has consistently denied weakness, pain, and joint stiffness at his VA appointments. The Board finds that the above evidence does not support a rating higher than 20 percent prior to March 18, 2021, and higher than 30 percent thereafter. At no point prior to March 18, 2021 did the Veteran exhibit limited range of motion of the right arm midway between side and shoulder level. The Veteran did report at his November 2017 examination that he could not move his right shoulder, but the Board finds this report to not be credible. Despite the examiner not obtaining measurements for range of motion testing, they did observe the Veteran using his right shoulder. Furthermore, the Veteran has consistently denied weakness, pain, and joint stiffness in his VA treatment records. The Board finds the fact that the Veteran was observed using his right shoulder and that he has not reported weakness or pain in his VA treatment records to contradict his report at examination that he cannot use his right shoulder. The contradictions make his statement of an inability to move his right shoulder to not be credible and the Board affords this statement little probative weight. The Board affords more probative weight to the observations of the examiner finding that the Veteran was able to move his right shoulder below the 90-degree horizontal plane. This limited motion supports that a 20 percent rating is appropriate as the Veteran was limited in moving his shoulder at shoulder level. There is no evidence in the claims file that suggests the Veteran's motion was limited to a level that would allow for a 30 percent rating earlier than March 18, 2021. It is not until the March 2021 examination that the Veteran exhibited limited motion midway between side and shoulder level, or 45 degrees of abduction or flexion. It is at this examination where the Board receives estimates of the Veteran's limited motion after three repetitions, repetitive use, and flare-ups that allow for a higher 30 percent rating. These estimates were provided due to the Veteran participating in range of motion testing. As such, a rating higher than 20 percent cannot be awarded prior to March 18, 2021. A rating higher than 30 percent also cannot be awarded. The evidence does not show limited motion of the right shoulder to 25 degrees from the side. At most, the Veteran is estimated to have 35 degrees of abduction after three repetitions, repetitive use, and flare-ups. Though the Veteran is limited in not being able to life overloads or more than ten pounds, this does not create additional limitations that would result in symptoms more nearly approximating the next higher rating. Accordingly, the Board finds the preponderance of the evidence is against a rating higher than 20 percent for the Veteran's right shoulder disability prior to March 18, 2021, and higher than 30 percent thereafter. As a preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. As such, the claim for a higher rating is denied. REASONS FOR REMAND Major Depressive Disorder Additional VA treatment records were associated with the claims file in August 2021, after the most recent May 2021 supplemental statement of the case (noting that the last VA treatment record reviewed was dated March 2021) and before the case was transferred to the Board in September 2021. Some of these newly obtained VA treatment records discuss the nature and severity of the Veteran's psychiatric disability. As such, they are relevant to the issue being remanded. The Board recognizes that, although the Veteran's substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and not submitted by the Veteran. Accordingly, a remand is necessary for the RO to review the newly submitted and relevant VA evidence in the first instance because a waiver of agency of original jurisdiction consideration has not been provided by the Veteran. (Continued on the next page) The matter is REMANDED for the following action: Readjudicate the claim for a higher rating for major depressive disorder with psychotic symptoms considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.