Citation Nr: 21064452 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 15-20 771 DATE: October 20, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for right shoulder subacromial bursitis with impingement and adhesive capsulitis (status post arthroscopic decompression distal clavicle resection and right shoulder biceps tendinopathy status post arthroscopic tendon surgery) (right shoulder disability) prior to June 2, 2015, is denied. Entitlement to an evaluation in excess of 30 percent for the right shoulder disability on or after August 1, 2015, is denied. FINDINGS OF FACT 1. Prior to June 2, 2015, the Veteran's right shoulder disability was not productive of limitation of motion of the arm to midway between her side and shoulder level. 2. Since August 1, 2015, the Veteran's right shoulder disability has not been productive of limited flexion and/or abduction to 25 degrees from her side. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for a right shoulder disability prior to June 2, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5201. 2. The criteria for an evaluation in excess of 30 percent for a right shoulder disability on or after August 1, 2015, have not been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 2002 to November 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA). In a May 2016 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for the Veteran's service-connected right shoulder disability to 20 percent effective from August 1, 2014, the date of the claim for an increased evaluation. The AOJ also assigned a temporary 100 percent evaluation effective from June 2, 2015, based on convalescence following surgery, and continued the 20 percent evaluation effective from August 1, 2015. See 38 C.F.R. § 4.30. The Veteran did not express disagreement with the determination as to the temporary total evaluation. A hearing was held before the undersigned Veterans Law Judge in August 2018. A transcript of the proceeding is of record. The Board remanded the case for further development in September 2018. While the case was in remand status, the AOJ granted a 30 percent evaluation for the service-connected right shoulder disability effective from August 1, 2015, as well as a separate noncompensable evaluation for surgical scars effective from the date of the surgery. The Board also remanded the case for further development in February 2020 for further development. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Even when the background factors listed in 38 C.F.R. §§ 4.40, 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which the 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."). The Veteran's service-connected right shoulder disability is currently assigned a 20 percent evaluation prior to June 2, 2015 and a 30 percent evaluation since August 1, 2015, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5201. During the pendency of this appeal, VA issued revised schedular criteria for rating musculoskeletal disabilities, including some of the diagnostic codes for rating shoulder disabilities under 38 C.F.R. § 4.71a, which became effective February 7, 2021. However, consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to February 7, 2021, neither the RO nor the Board could apply the revised rating schedule. 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 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. As such, VA must consider the claims pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Veteran is right-handed; therefore, the rating criteria for the major arm are applicable. Under the version of Diagnostic Code 5201 to the February 7, 2021, Diagnostic Code 5201, a 20 percent evaluation is assigned for limitation of motion of the major arm at shoulder level, and a 30 percent evaluation is contemplated for imitation of motion of the major arm midway between the side and shoulder level. A 40 percent evaluation is warranted with limitation of motion of the major arm to 25 degrees from the side. Under the amended version of Diagnostic Code 5201, a 20 percent evaluation is assigned for limitation of the major arm at shoulder level (flexion and/or abduction limited to 90 degrees). A 30 percent evaluation is contemplated for limitation of motion of the major arm to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A 40 percent evaluation is warranted for when flexion and/or abduction of the major arm is limited to 25 degrees from the side. For VA compensation purposes, normal range of motion for the shoulder is 180 degrees of forward flexion, 180 degrees of abduction, and 90 degrees of external and internal rotation. See 38 C.F.R. § 4.71, Plate I. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for her service-connected right shoulder disability for either period on appeal. Prior to June 2, 2015, the Veteran was not shown to have motion limited to midway between the side and shoulder level. In this regard, a November 2014 VA examination revealed right shoulder flexion to 155 degrees, abduction to 145 degrees, external rotation to 85 degrees, and internal rotation to 90 degrees. After repetitive-use testing, she still maintained right shoulder flexion to 135 degrees, abduction to 135 degrees, external rotation to 85 degrees. Moreover, during flare-ups, it was estimated that she had 130 degrees of flexion, 125 degrees of abduction, 80 degrees of external rotation, and 90 degrees of internal rotation. On or after August 1, 2015, the Veteran has not been shown to have flexion and/or abduction limited to 25 degrees from the side. In fact, a March 2016 VA examination found that she had 120 degrees of flexion and abduction, and there was no additional functional loss or range of motion after repetitive-use testing. A September 2019 VA examiner also found that she had flexion to 90 degrees and abduction to 70 degrees, and the Veteran was able to perform repetitive-use testing with flexion to 80 degrees and abduction to 50 degrees. During a flare-up, she had flexion and abduction to 30 degrees, and the results of passive range of motion testing were the same as active motion. In addition, a July 2020 VA examiner indicated that the Veteran had flexion to 115 degrees and abduction to 110 degrees, and during repetitive-use testing and flare-ups, she maintained 100 degrees of both flexion and abduction. There was no objective evidence of pain on passive range of motion testing of the right shoulder. For these reasons, the Board finds that the Veteran is not entitled to an increased evaluation under Diagnostic Code 5201 for either time period on appeal The Board has also considered whether an increased evaluation is warranted under other relevant diagnostic codes, including codes governing ankylosis of scapulohumeral articulation, other impairment of the humerus, and impairment of the scapula or clavicle. However, the Board finds that the criteria for a higher or separate rating under these provisions are not met. See 38 C.F.R. § 4.71a , Diagnostic Codes 5200, 5202, 5203. In this regard, the November 2014, March 2016, September 2019, and July 2020 VA examiners specifically stated that the Veteran did not have ankylosis of the right shoulder, and the aforementioned range of motion findings do not show or suggest that the shoulder is fixed or immobile. The Veteran has also not been shown to have impairment of the humerus. Indeed, the November 2014, March 2016, September 2019, and July 2020 VA examiners found that the Veteran did not have impairment of the humerus, to include the loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, and malunion of the humerus with moderate or marked deformity. Moreover, a 20 percent evaluation is the maximum schedular evaluation available under Diagnostic Code 5203 for impairment of the clavicle or scapula and under Diagnostic Code 5003 for degenerative arthritis. Therefore, an increased evaluation cannot be granted under Diagnostic Code 5203 or 5003. Thus, the Board finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Codes 5003, 5200, 5202, or 5203. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the findings in DeLuca. However, an increased evaluation for the right shoulder disability is not warranted on the basis of functional loss due to pain or weakness in this case. The Veteran's right shoulder symptoms are supported by pathology consistent with the assigned 20 and 30 percent ratings, and no higher. In this regard, the Board observes that the Veteran has complained of pain and difficulty moving her shoulders as well as difficulty gripping. However, even with such symptoms, she has still maintained a range of motion greater than midway between her side and shoulder level or 25 degrees from her side during all range of motion testing. As such, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond the 20 and 30 percent evaluations already assigned. Accordingly, the Board concludes that increased or separate evaluations are not warranted for the Veteran's service-connected right shoulder disability under DeLuca. As previously noted, there have been reports that the Veteran has increased difficulty gripping. However, the September 2019 VA examiner stated that there was no clear anatomic rationale to support the Veteran's increased gripping difficulty with her right hand that would be secondary to her shoulder issue. The August 2020 VA examiner also found that the Veteran's right-hand grip strength, wrist dorsiflexion, wrist palmer flexion, finger abduction, and hand finger flexion were all 5/5. It was noted that the Veteran reported having difficulty with twisting motions, such as opening jars or doing her hair, but that she could use her hands and fingers when twisting does not involve force. Rather, she only had difficulty when force and motion of the shoulder is required. The examiner noted that the Veteran herself stated that she does not have problems with grip strength or the use of her hand, wrist, and lower arm and that her difficulty with gripping arises from weakness in the right shoulder. Thus, such difficulties are contemplated in the evaluations assigned based on her limitation of motion of the right shoulder. Based on the foregoing, the Board finds that the weight of the evidence is against increased ratings for the Veteran's service-connected right shoulder disability prior to June 2, 2015, and on or after August 1, 2015. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied in this regard. Gilbert, 1 Vet. App. 49 (1990). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.