Citation Nr: 21062802 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-50 607 DATE: October 12, 2021 ORDER Entitlement to an increased disability rating in excess of 20 percent for bicipital tendonitis of the left shoulder status post arthroscopic clavicle resection with degenerative arthritis is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's bicipital tendonitis of the left shoulder status post arthroscopic clavicle resection with degenerative arthritis is manifested by limitation of motion of the arm at the shoulder level (flexion limited to 85 degrees and abduction limited to 75 degrees) of the minor extremity. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for bicipital tendonitis of the left shoulder status post arthroscopic clavicle resection with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION Increased Rating for Left Shoulder The Veteran contends that he is entitled to a higher rating for bicipital tendonitis of the left shoulder status post arthroscopic clavicle resection with degenerative arthritis (hereinafter shortened to "left shoulder tendonitis") because his symptoms are worse than that contemplated by a 20 percent rating. The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's left shoulder tendonitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, 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. As of February 7, 2021, under the amended criteria, limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 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). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for left shoulder tendonitis. The evidence of record shows that the Veteran is right-handed, per April 2016, March 2017, November 2019, and April 2021 VA examinations. Thus, the Veteran's left shoulder tendonitis involves the minor extremity. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has persistent pain and his disability affects his ability to reach, carry, push, pull, and lift moderate objects from mid-chest and above would not result in symptoms more nearly approximating limitation of motion of the arm midway between the side and shoulder level of the minor extremity or limitation of motion of the arm to 25 degrees from the side of the minor extremity. April 2016, March 2017, November 2019, and April 2021 VA examinations reveal that the Veteran's left shoulder flexion was limited to 80 degrees and abduction was limited to 75 degrees, at most. These examination findings are consistent with VA treatment records. A July 2016 VA orthopedic note indicated that the Veteran is not able to perform repetitive use of the left upper extremity with the hands at or above the shoulder level. Additionally, abduction was limited to 90 degrees in July 2016 and flexion and abduction were both limited to 150 degrees in May 2020 VA treatment records. Accordingly, the Board finds that the Veteran's left shoulder tendonitis is manifested by limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees), which warrants a 20 percent rating for the nondominant arm under both the old and amended criteria. A rating in excess of 20 percent is not warranted as there is no evidence showing limitation of motion of the arm with flexion and/or abduction limited to 25 degrees from the side at any point during the appeal period. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. There is no evidence of ankylosis of scapulohumeral articulation (Diagnostic Code 5200), other impairment of the humerus such as fibrous union, nonunion, loss of head, or malunion (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203). In so finding, the Board notes that the Veteran is competent to report on symptoms and sincere in his belief that he is entitled to a higher rating. The Veteran's lay evidence, however, is outweighed by the competent and credible medical evidence that evaluates the true extent of the impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the medical examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the medical findings in regard to the type and degree of the Veteran's impairment. 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 left shoulder tendonitis. 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. REASONS FOR REMAND Having reviewed the record, the Board finds remand is warranted with respect to the issue of entitlement to a TDIU. Specifically, remand is necessary to clarify the Veteran's last date of full-time employment. A January 2018 VA Form 21-8940 indicated that the Veteran was still employed and did not provide a last date of employment. However, recent VA treatment records indicate that the Veteran is currently unemployed and receiving workman's compensation. In order to determine the Veteran's entitlement to a TDIU, clarification is needed on his last date of employment with his former employer. Accordingly, on remand, the Veteran should be asked to complete a new VA Form 21-8940 that clearly identifies his dates of employment during the appeal period. The matter is REMANDED for the following action: Request from the Veteran an updated VA Form 21-8940 that clearly identifies his dates of employment during the appeal period. Conduct any additional development deemed necessary for adjudication of the TDIU claim. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.