Citation Nr: 21062869 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-38 449 DATE: October 12, 2021 ORDER An initial rating higher than 20 percent under DC 5201 for limitation of right arm motion is denied. An initial rating higher than 30 percent under DC 5202 for right shoulder dislocation is denied. An initial rating higher than 20 percent under DC 5201 for limitation of left arm motion is denied. For the period prior to February 16, 2019, a rating of 20 percent, but no higher, under DC 5202 for left shoulder dislocation is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left knee surgical scar is remanded. Entitlement to service connection for cervical spine disability is remanded. FINDINGS OF FACT 1. The Veteran's right shoulder disability is manifested by arm motion limited to 100 degrees or more. 2. The Veteran is in receipt of the maximum rating available for recurrent dislocation of his dominant right shoulder, with no indication that he has any other impairment of the humerus. 3. The Veteran's left shoulder disability is manifested by arm motion limited to 100 degrees or more. 4. The evidence shows that the Veteran has experienced recurrent dislocation of his left shoulder during the entire appeal period. The Veteran is now in receipt of the maximum rating available for recurrent dislocation of the dominant shoulder, with no indication that he has any other impairment of the humerus. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for limitation of right arm motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for a rating in excess of 30 percent for right shoulder dislocation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5202. 3. The criteria for a rating in excess of 20 percent for limitation of right arm motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 4. For the period prior to February 16, 2019, the criteria for a rating of 20 percent, but no higher, for left shoulder dislocation are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1961 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) from June 2015 rating decision. The June 2015 rating decision, in relevant part, granted service connection for left and right shoulder disabilities. The Veteran appealed the initial ratings for these disabilities. 09/28/2015, NOD. In April 2020, the Board remanded the issues of higher initial ratings for the shoulders for additional development. Additionally, a September 2017 rating decision, in relevant part, denied service connection for left knee anterior cruciate ligament tear with arthritis, left knee operation scar, and cervical spine arthritis with spasms. In October 2019, the Board remanded these issues of service connection for additional development. The Board's remand included the issue of service connection for PTSD. Service connection for PTSD was recently granted in an August 2021 rating decision. Therefore, the issue of service connection for PTSD is no longer on appeal. 1. Entitlement to higher ratings for the Veteran's right shoulder disability. The June 2015 rating decision granted an initial rating of 30 percent under 38 C.F.R. § 4.71a, DC 5202 for right shoulder dislocation, effective August 18, 2014. More recently, a July 2021 rating decision granted a separate rating of 20 percent under DC 5201 for limitation of motion of the right arm, also effective August 18, 2014. *** Under DC 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, DC 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). Effective February 7, 2021, VA amended DC 5201 to reflect that 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 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. Under DC 5202, malunion of the humerus with moderate deformity warrants a 20 percent rating for both the major and minor extremity. Malunion of the humerus with marked deformity warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Recurrent dislocation of the humerus at scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent rating for both the major and minor extremity. Recurrent dislocation of the humerus at scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 20 percent rating in the minor extremity and a 30 percent rating in the major extremity. Fibrous union of the humerus warrants a 40 percent rating in the minor extremity and a 50 percent rating in the major extremity. Nonunion of the humerus (false fail joint) warrants a 50 percent rating in the minor extremity and a 60 percent rating in the major extremity. Loss of head of the humerus (flail shoulder) warrants a maximum 70 percent rating for the minor extremity and a maximum 80 percent rating for the major extremity. 38 C.F.R. § 4.71a, DC 5202. Effective February 7, 2021, VA amended DC 5202 to reflect that limitation of motion may be shown by flexion and/or abduction and to clarify the degrees of range of motion that relate to movement at the shoulder level. Now, recurrent dislocation of humerus at scapulohumeral joint with infrequent episodes, and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees) warrants a 20 percent rating for both the major and minor extremity.] According to the dictionary, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. *** For the Veteran to be entitled to a rating higher than 20 percent under DC 5201 for his dominant right shoulder, the evidence must show limitation of arm motion (flexion and/or abduction) limited to 45 degrees or less. This, however, is not the case here, as the evidence shows limitation of flexion and abduction of no less than 100 degrees. Specifically, three VA examinations show flexion limited to between 140 and 150 degrees, and abduction limited to between 100 and 140 degrees. 05/08/2015, 02/28/2019 & 07/29/2021, C&P Exams. As noted in prior Board decisions, the first two VA examinations (May 2015 and February 2019) did not properly address the extent of any additional functional loss with repeated use or during flare-ups. Nevertheless, this aspect was properly addressed in the most recent (July 2021) VA examination. Per the examination report, the Veteran reported 2 to 3 episodes of flare-ups per months, lasting 3 to 4 hours in duration, described as sharp pain, precipitated by overhead activities and house chores, and alleviated by naproxen as needed. The extent of the functional impairment during flare-ups was described as avoidance of throwing objects and lifting/carrying heavy objects, and difficulty with overhead activities. Significantly, the VA examiner estimated that the Veteran experienced flexion and abduction limited to 100 degrees during flare-ups, which was less than the estimated flexion of 135 degrees with repeated use over time. The evidence above describes a level of disability that more closely approximates the criteria for the currently assigned rating of 20 percent. Furthermore, in the absence of evidence that the Veteran's right shoulder disability manifests as arm motion limited midway between side and shoulder level (45 degrees) or less, a disability rating higher than 20 percent under DC 5201 is not warranted. The evidence shows that the Veteran's right shoulder disability manifests, in addition to limitation of arm motion, as recurrent dislocation of the glenohumeral joint. The Veteran is in receipt of a rating of 30 percent under DC 5202 for these symptoms. This is the highest rating available under DC 5202 for recurrent joint dislocation. Higher ratings are available under DC 5202, but these require evidence of fibrous union, nonunion, or loss of head of the humerus. In this case, there is no argument or indication that the Veteran has a humerus disability of such nature. Therefore, a rating higher than 30 percent under DC 5202 is not warranted. 2. Entitlement to higher initial ratings for the left shoulder disability. The June 2015 rating decision granted an initial rating of 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201-5019 for left shoulder dislocation, effective August 18, 2014. A February 2017 rating decision granted a higher initial rating of 20 percent under DC 5201. Recently, a July 2021 rating decision granted a separate rating of 20 percent under DC 5202, effective February 16, 2019. *** For the Veteran to be entitled to a rating higher than 20 percent under DC 5201 for his non-dominant left shoulder, the evidence must show limitation of arm motion (flexion and/or abduction) limited to 45 degrees or less. This, however, is not the case here, as the evidence shows limitation of flexion and abduction of no less than 100 degrees. Specifically, three VA examinations show flexion limited to between 140 and 160 degrees, and abduction limited to between 140 and 150 degrees. 05/08/2015, 02/28/2019 & 07/29/2021, C&P Exams. Like the right shoulder, prior Board remands have commented that the first two VA examinations (May 2015 and February 2019) did not properly address the extent of any additional functional loss with repeated use or during flare-ups. Nevertheless, this aspect was properly addressed in the most recent (July 2021) VA examination. Per the examination report, the Veteran reported 2 to 3 episodes of flare-ups per months, lasting 3 to 4 hours in duration, described as sharp pain, precipitated by overhead activities and house chores, and alleviated by naproxen as needed. The extent of the functional impairment during flare-ups was described as avoidance of throwing objects and lifting/carrying heavy objects, and difficulty with overhead activities. Significantly, the VA examiner estimated that the Veteran experienced flexion and abduction limited to 100 degrees during flare-ups. The evidence above describes a level of disability that more closely approximates the criteria for the currently assigned rating of 20 percent. Furthermore, in the absence of evidence that the Veteran's left shoulder disability manifests as arm motion limited midway between side and shoulder level (45 degrees) or less, a disability rating higher than 20 percent under DC 5201 is not warranted. The evidence shows that the Veteran's right shoulder disability manifests, in addition to limitation of arm motion, as recurrent dislocation of the glenohumeral joint. The Veteran is in receipt of a rating of 20 percent under DC 5202 for these symptoms, but only for the period since February 16, 2019. The May 2015 VA examination is silent for recurrent dislocation of the left shoulder. In contrast, the two most recent VA examinations (February 2019 and July 2021) clearly show bilateral shoulder dislocation. Significantly, in the "Remarks" section of the February 2019 VA examination, the VA examiner stated that "[t]he Veteran has had the same history of instability and frequent dislocation on the right shoulder as the left shoulder which has been service connected for left shoulder disability/left shoulder dislocation since 1963 as documented in STRs." This statement tends to establish that the Veteran's had history of left shoulder dislocation that predated February 2019 and at least as likely as not existed at the time of the May 2015 VA examination. Resolving doubt in favor of the Veteran, the Board concludes that he has experienced recurrent dislocation of his left shoulder throughout the appeal period. The Board now turns to the question of whether a higher rating under DC 5202 is warranted. The currently assigned rating of 20 percent is the highest rating available under DC 5202 for recurrent joint dislocation in a non-dominant shoulder. Higher ratings are available under DC 5202, but these require evidence of fibrous union, nonunion, or loss of head of the humerus. In this case, there is no argument or indication that the Veteran has a humerus disability of such nature. Therefore, a rating higher than 20 percent under DC 5202 is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks service connection for a left knee disability. 05/23/2017, VA 21-526EZ, Fully Developed Claim. A July 2021 VA examination shows a diagnosis left knee osteoarthritis status post total knee replacement surgery. Service treatment records are silent regarding left knee injuries or symptoms. 10/16/2014, STR-Medical. At the July 2021 VA examination, the Veteran reported a history of left knee pain for the "past several years." The Veteran has suggested that his left knee disability is related to his service as a paratrooper. The Veteran's DD-214 indicates that the Veteran served as an infantry in an airborne infantry unit. He was awarded a parachutist badge and was noted to have completed a basic airborne course. This confirms that the Veteran's service included parachuting. In October 2019, the Board remanded for a new VA examination and opinion regarding the nature and etiology of the Veteran's left knee disability. In July 2021, a VA examiner opined that the Veteran's left knee arthritis status post total knee replacement surgery is less likely than not related to service and less likely than not to have manifested within one year after service. The examiner's rationale was that there were no records showing chronicity of care in service or shortly after service and that the actual condition was diagnosed in 2014. The examiner described the Veteran's condition as part of the normal aging process. The July 2021 VA opinion relies overwhelmingly on the absence of corroborating evidence and lacks a comprehensive medical rationale. Moreover, the opinion fails to discuss the extent to which the Veteran's in-service parachuting may have contributed to the development of the left knee disability. An adequate opinion is therefore not of record. As such, a remand for a new examination/opinion is necessary. 2. Entitlement to service connection for left knee surgical scar is remanded. The Veteran seeks service connection for a left knee scar, claimed as left knee operation scar. 05/23/2017, VA 21-526EZ, Fully Developed Claim. This issue is inextricably intertwined with the issue of service connection for a left knee disability. As such, the appropriate course of action is to defer adjudication of it until after the issue of entitlement to a left knee disability has been adjudicated. 3. Entitlement to service connection for cervical spine disability is remanded. The Veteran seeks service connection for a cervical spine disability, claimed as chronic neck pain. 05/23/2017, VA 21-526EZ, Fully Developed Claim. Service treatment records are silent regarding left knee injuries or symptoms. 10/16/2014, STR-Medical. A July 2021 VA examination shows a diagnosis of degenerative arthritis. The Veteran reported a history of neck symptoms for "several years." The examiner opined that the Veteran's neck disability is less likely than not related to service and less likely than not to have manifested within one year after service. The examiner's rationale was that there were no records showing chronicity of care in service or shortly after service and that the actual condition was diagnosed in 2016. The July 2021 VA opinion relies overwhelmingly on the absence of corroborating evidence, lacks a comprehensive medical rationale, and does not show adequate consideration of the Veteran's history. For instance, the opinion fails to discuss the extent to which the Veteran's physically demanding service as a paratrooper may have contributed to the development of his neck disability. An adequate opinion is therefore not of record. A remand for a new examination/opinion is necessary. These matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his left knee disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran's left knee disability at least as likely as not related to service? The Veteran has suggested that his left knee disability is related to his service as a paratrooper. The opinion should consider the extent to which parachuting duties contributed to the development of the Veteran's left knee disability. To the extent possible, the examiner should ask the Veteran to provide details of any left knee injuries or symptoms during service. (b.) Is it at least as likely as not that the Veteran's left knee arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. In providing the requested opinion, consider the Veteran's description of any in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a VA examination for his cervical spine disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran's cervical spine disability at least as likely as not related to service? To the extent possible, the examiner should ask the Veteran to provide details of any neck injuries or symptoms during service. (b.) Is it at least as likely as not that the Veteran's cervical spine arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (c.) Is the Veteran's cervical spine disability at least as likely as not proximately due to a service-connected disability? The Veteran is service-connected for bilateral shoulder disabilities and PTSD. (d.) Is the Veteran's cervical spine disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? The Veteran is service-connected for bilateral shoulder disabilities and PTSD. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page) In providing the requested opinion, consider the Veteran's description of any in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.