Citation Nr: 21063082 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-33 160 DATE: October 13, 2021 ORDER Entitlement to a rating in excess of 20 percent, on either a schedular or extraschedular basis, for a right shoulder disability is denied. Entitlement to a rating in excess of 20 percent, on either a schedular or extraschedular basis, for a left shoulder disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates the Veteran's bilateral shoulder disability has manifested as no worse than flexion limited to 70 degrees and no worse than 55 degrees abduction bilaterally. 2. The Veteran's bilateral shoulder disability does not cause marked interference with employment, frequent hospitalizations, or unique and unusual factors that would justify an extraschedular rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a right shoulder disability, on either a schedular or extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.71A, DC 5003, 5201. 2. The criteria for entitlement to a rating in excess of 20 percent for a left shoulder disability, on either a schedular or extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.71A, DC 5003, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 1993 to October 2013. These matters originally came to the Board from an August 2014 rating decision. The matters were remanded by the Board in November 2018 and July 2020. The July 2020 remand requested an opinion from the Chief Benefits Director or the Director of Compensation and Pension considering an extraschedular rating for the bilateral shoulder condition. Such an opinion was rendered in February 2021, denying entitlement to an extraschedular rating for the bilateral shoulder condition. INCREASED RATING 1. Entitlement to a rating in excess of 20 percent for a bilateral shoulder disability 2. Entitlement to a rating in excess of 20 percent for a bilateral shoulder disability on an extraschedular basis Disability ratings are determined in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability picture more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3 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. Additionally, 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, 206 (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, 5 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (the Court) held that the final sentence of § 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 flare-ups from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Thus, VA must consider the claim for a higher rating pursuant to both the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9 (b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations, and court decisions, that were not previously considered by the AOJ. In Disabled American Veterans v. Sec. of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904 (d)(2), the Board will proceed to adjudicate the Veteran's claim. The Veteran's bilateral rotator cuff tendonitis is rated under DC 5003-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When, however, the limitation of motion of the specific joint involved is non-compensable under the appropriate diagnostic code, a rating of 10 percent is applicable to each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The aforementioned revisions to the criteria for evaluating musculoskeletal disorders did not change the rating criteria under DC 5003, but beginning February 7, 2021, it contemplates "degenerative arthritis, other than post-traumatic." Normal range of motion for the shoulder is from 0 to 180 degrees flexion and abduction and from 0 to 90 degrees of external and internal rotation. 38 C.F.R. § 4.71A, Plate I. Upper extremity ratings depend on whether the affected extremity is the major or minor extremity. The major extremity is the one that the Veteran predominantly uses. 38 C.F.R. § 4.69. Limitation of motion of the arm is governed by DC 5201. Prior to February 7, 2021, DC 5201 provided a 20 percent rating for both the major and minor extremity where motion of the arm is limited to shoulder level. Limitation of motion of the arm midway between the side and shoulder warranted a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion to 25 degrees from the side warranted a 30 percent rating for the minor extremity and a 40 percent rating for the major extremity. 38 C.F.R. § 4.71A, DC 5201. DC 5201 was changed by the aforementioned revisions to the criteria for evaluating musculoskeletal disorders. Effective February 7, 2021, the rating criteria specify the degree to which motion of the arm must be limited for the Veteran to be eligible for a particular rating. Under these changes, limitation of motion of the arm at 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 (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. Limitation of motion of the arm to 25 degrees from the side warrants a maximum 30 percent rating for the minor extremity and a maximum 40 percent rating for the major extremity. 38 C.F.R. § 4.71A, DC 5201. 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 evidence of record, including his VA examinations, shows that the Veteran is right-handed. Thus, his left shoulder is considered the minor extremity. 38 C.F.R. § 4.69. The Veteran underwent two VA examinations during the pendency of the appeal, in July 2014 and December 2019. The Veteran reported pain with certain movements in both shoulders and grinding in the right shoulder at the July 2014 VA examination. The examiner noted a diagnosis of mild degenerative joint disease bilaterally. The Veteran's range of motion (ROM) was abnormal. Right shoulder flexion was limited to 90 degrees with painful motion beginning at 70 degrees. Right shoulder abduction was limited to 110 degrees with painful motion beginning at 70 degrees. Flexion and abduction of the left shoulder was normal without evidence of painful motion. There was no additional loss of motion after observed repeated use and the examiner indicated there would be no additional loss after repetitive use testing. The Veteran had functional impairment because of pain on movement bilaterally and less movement than normal for the right shoulder. Muscle strength testing was normal bilaterally. No ankylosis was noted. On specific testing for rotator cuff injuries the Veteran had a negative Hawkins' impingement test, empty-can test, external rotation/infraspinatus strength test, and lift-off subscapularis test. The examiner indicated the Veteran's bilateral shoulder disability would impair load bearing activities. The December 2019 VA examiner noted a diagnosis of degenerative joint disease bilaterally as well as bilateral rotator cuff tendonitis. The Veteran reported his left shoulder pops when arm is raised, intermittent pain in the center top shoulders, and a dull gripping quality; he reported the right shoulder had sharp pain in the posterior shoulder. The Veteran reported flare-ups that occur twice a week in the left shoulder and once a week in the right shoulder. The flare-ups can be triggered by simple tasks in the right, like driving a car. The Veteran reported his flare-ups impair his ability to work out, lift weights, work overhead, lift and carry heavy things, chores like raking the leaves, and household work. The Veteran's ROM was abnormal and noted to be worst during a flare-up when flexion was limited to 70 degrees on the right, 75 degrees on the left and abduction was limited to 55 degrees bilaterally. The Veteran was unable to perform external or internal rotation due to pain. The examiner indicated that pain and weakened movement contributed to the Veteran's disability bilaterally. Muscle strength was slightly reduced bilaterally on flexion and abduction. No muscle atrophy or ankylosis was noted. The Veteran was unable to perform any of the rotator cuff tests. Instability of the left shoulder was suspected, and mechanical symptoms were noted to be present. The Veteran's bilateral shoulder disability limits his ability to lift and carry heavy things, work overhead, and perform sweeping or circular motions. Treatment records do no note symptomatology more severe than that discussed above. The Veteran's flexion was, at worst, limited to 70 degrees on the right, 75 degrees on the left and abduction was, at worst, limited to 55 degrees bilaterally during the period on appeal. These measurements are estimated ROM limitation during a flare-up. The Board finds the Veteran's bilateral shoulder disability symptomatology is most accurately contemplated by the 20 percent rating criteria. While the Veteran's flexion and abduction was limited to below the shoulder, at no point was it limited to between midway from the side to the shoulder or limited to 45 degrees. The Board acknowledges the Veteran's inability to perform internal or external rotation due to pain, but does not find this limitation warrants a higher rating. While internal and external ROM is a limitation of motion, it is not shown to additionally contribute to the Veteran's limitation of abduction or flexion, or in any way limit the Veteran's ability to raise his arm to at least 55 degrees abduction and 70 degrees flexion. DC 5201 contemplates limitation of motion of the arm generally and for a 30 percent rating to be warranted in this case, the Veteran's abduction and flexion would need to be limited to 45 degrees on the right and 25 degrees on the left. Such is simply not demonstrated by the record. Further, as the Board is using the Veteran's ROM measurements during a flare-up, when the Veteran reported the most pain and limitations of movement, the Board is taking into consideration pain, weakened movement, and limited movement. 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. 38 C.F.R. § 4.71A. At no point has the Veteran experienced ankylosis of the scapulohumeral articulation (DC 5200) or impairment of the humerus (DC 5202). It was noted in the December 2019 VA examination that the Veteran had an impairment of the clavicle or scapula (DC 5203), but the associated diagnosis was degenerative arthritis, the symptoms of which are already contemplated by DC 5201. As such, a separate rating is not warranted as it would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Further, the Veteran is already in receipt of the highest possible rating under DC 5203 and thus rating the Veteran's shoulder disability under DC 5203 would not be advantageous to the Veteran. In sum, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a schedular rating in excess of 20 percent for either shoulder. The Board notes the evidence of record indicates the Veteran is unemployable at least in part because of his bilateral shoulder disabilities. However, an award of a total disability rating based on unemployability (TDIU) is moot as the Veteran has been in receipt of both a total schedular rating for residuals of a traumatic brain injury and special month compensation for the entirety of the appeal period. Extra-Schedular Consideration To accord justice in exceptional cases where the schedular standards are found to be inadequate a RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here the Board referred the case for extraschedular consideration to the Director in July 2020. The Director denied an extraschedular rating in February 2021. The Director stated that there has been no factual demonstration of impairment to earning capacity based on exceptional or unusual factors for bilateral shoulder conditions. Denial of entitlement to an extraschedular rating was denied in a July 2021 Supplemental Statement of the Case (SSOC). The Director's decision is not evidence, but rather the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Board also points out that the Board's determination that referral for extraschedular consideration is warranted does not establish that an extraschedular rating is warranted. Thun v. Peake, 22 Vet. App. 111 (2008), describes the three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for that service-connected disability is inadequate. Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate the veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. If an extraschedular disability rating is denied in the first instance, then the matter is returned to the Board for reevaluation based on the first two criteria. At the December 2019 VA examination, the Veteran was unable to perform internal or external rotation due to pain. As impairment of internal and external rotation is not explicitly mentioned in the diagnostic criteria, the Board remanded the claim for consideration on an extraschedular basis. After reviewing the VA examinations and treatment records, the Board finds an extraschedular rating is not assignable in this case. There is no evidence to support a finding the Veteran's shoulder conditions manifested as marked interference with employment. The Board does not doubt the Veteran's service-connected bilateral shoulder disability impacts the Veteran's occupational functioning; however, marked interference in employment is not shown. Further, interference with employment is recognized and contemplated by the assigned 20 percent rating. The evidence indicates the Veteran's only functional impairments of the shoulder would be in lifting heavy things and reaching overhead. Such findings do not demonstrate marked interference. (Continued on the next page) Aside from employability, the Veteran also has not had any periods of hospitalization resulting from his service-connected bilateral shoulder disability. Medical treatment records do not show that the Veteran was frequently hospitalized for his shoulder disabilities. In summary, there is no evidence the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms" in accordance with Thun. Thun, 22 Vet. App. 111. Accordingly, the claim for entitlement to an increased rating for bilateral shoulder disability on an extraschedular basis is denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.