Citation Nr: 21064465 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 14-04 806 DATE: October 20, 2021 ORDER A rating in excess of 30 percent, exclusive of the period where a temporary total rating has been assigned, for degenerative joint disease of the right shoulder, status post injury of the right arm with post-operative ruptured right biceps muscle, (right shoulder disability) is denied. FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. For the entire appeal period, exclusive of the period where a temporary total rating has been assigned, the Veteran's right shoulder disability is manifested by pain and stiffness, with arm motion limited to, at most, midway between the arm and shoulder level, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, and incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent, exclusive of the period where a temporary total rating has been assigned, for right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1962 to February 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2011 by a Department of Veterans Affairs (VA) Regional Office. In July 2019, the Veteran and several family members testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2019, and April 2021, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a rating in excess of 30 percent, exclusive of the period where a temporary total rating has been assigned, for right shoulder disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board begins on July 25, 2011, the date VA received the Veteran's claim for an increased rating for his right shoulder disability, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Exclusive of the period from March 28, 2012, to June 1, 2012, for which a temporary total rating has been assigned, the Veteran's service-connected right shoulder disability is rated as 30 percent disabling pursuant to Diagnostic Code 5010-5201. 38 C.F.R. § 4.71a. As VA examinations conducted throughout the appeal period reflect that the Veteran is right hand dominant, the ratings pertaining to the major extremity are applicable in the instant case. In this regard, the Board notes that, 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 as of February 7, 2021, applying the criteria that is more favorable to him. In this regard, prior to the regulatory change, Diagnostic Code 5010 pertains to traumatic arthritis and is evaluated as degenerative arthritis. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, Diagnostic Code 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under Diagnostic Code 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. As of February 7, 2021, under the amended criteria, Diagnostic Code 5010 still pertains to post-traumatic arthritis, but such is now rated as limitation of motion, dislocation, or other specified instability under the affected joint rather than degenerative arthritis. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Thus, in practice, both versions of Diagnostic Code 5010 ultimately provide that arthritis of an affected joint will be rated based on limitation of motion. Prior to the regulatory change, Diagnostic Code 5201 provides that arm motion that is limited midway between the side and shoulder level warrants a 30 percent rating in the major extremity, and arm motion that is limited to 25 degrees from the side warrants a 40 percent rating in the major extremity. While Diagnostic Code 5201 was amended as of February 7, 2020, such amendments did not intend to alter the rating criteria; rather, they simply clarified the specific ranges of motion that qualified as limitations to promote consistency among ratings. As noted in the clarification, a 30 percent rating for a major joint where motion is limited to "midway between side and shoulder level," was clarified as being flexion and/or abduction limited to 45 degrees or less. Additionally, a 40 percent rating for a major joint where motion is limited "to 25 degrees from side" was clarified as being flexion and/or abduction limited to 25 degrees from side. Under both sets of regulations, normal range of motion in the shoulder is noted to be from zero to 180 degrees of forward elevation (flexion) and zero to 180 degrees of shoulder abduction. 38 C.F.R. § 4.71a, Plate I. As noted above, the Veteran is right hand dominant, and therefore, the evidence must demonstrate arm motion, i.e., flexion and/or abduction, limited to 25 degrees from the side to warrant a higher rating under Diagnostic Code 5201. In this regard, the Board notes that, during the pendency of the appeal, the Veteran reported symptoms of pain, stiffness, limited motion, and functional impairment associated with his right shoulder disability. However, even taking into consideration such symptomatology, the Board finds that, as will be discussed below, such does not result in functional loss that more nearly approximates higher or separate ratings under any relevant Diagnostic Code. See DeLuca, supra; Mitchell, supra. In this regard, the objective medical evidence does not reflect right arm motion limited to 25 degrees from the side at any time during the pendency of the appeal, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, and incoordination, or as a result of repetitive motion and/or flare-ups. Specifically, on VA examination in October 2011, flexion was limited to 130 degrees, with pain beginning at 100 degrees, and abduction was limited to 90 degrees, with pain beginning at 80 degrees. The Veteran denied flare-ups and he had no additional loss after repetitive-use testing. An August 2012 VA examination reflects the Veteran's report that he can lift his arm above shoulder level, and he had flexion limited to 120 degrees and abduction limited to 105 degrees, with pain, but without additional limitation following repetitive use testing. In January 2014, VA examination revealed flexion limited to, at most, 125 degrees, with pain beginning at 120 degrees, and abduction limited to, at most, 100 degrees, with pain beginning at 90 degrees, to include as a result of repetitive motion and/or flare-ups. A January 2020 VA examination report shows flexion and abduction estimated to be limited to, at most, 45 degrees following repeated use over time and during flare-ups. In June 2020, a VA clinician reviewed the aforementioned examinations and noted there was objective evidence of pain with and without weightbearing and on active and passive motion. All ranges of motion were affected with repeated use over time and with flare-ups. However, the clinician specifically found there was no evidence of ankylosis, even in light of such factors. On VA examination in July 2021, the Veteran's flexion was limited to, at most, 75 degrees, and his abduction was limited to, at most, 70 degrees following repeated use over time. Additionally, the VA examiner reviewed the aforementioned examinations and determined flexion would have been limited to, at most, 130 degrees, 120 degrees, and 120 degrees on examination in October 2011, August 2012, and January 2014, respectively, with pain on weightbearing, non-weightbearing, passive motion, and active motion. Further, the VA examiner concluded abduction would have been limited to, at most, 90 degrees, 105 degrees, and 105 degrees in October 2011, August 2012, and January 2014, respectively, with pain on weightbearing, non-weightbearing, passive motion, and active motion. Moreover, the VA examiner noted there was no pain with weightbearing or non-weightbearing and the same ranges of motion on passive motion and active motion on VA examination in July 2021. Thus, the ranges of motion on passive motion would be the same as the ranges of motion reported on all the examination reports, along with the Veteran not having any pain with weightbearing and non-weightbearing. A review of the pertinent VA treatment records and private treatment records does not demonstrate flexion or abduction limited to 25 degrees from the side at any time during the relevant appeal period. For example, VA treatment records dated in February 2012, October 2012, October 2018, and December 2018 reveal flexion limited to 160 degrees, 150 degrees, 115 degrees, and 110 degrees, respectively, whereas abduction was limited to 120 degrees and 130 degrees in February 2012 and October 2012, respectively. Therefore, even in contemplation of the Veteran's aforementioned subjective symptoms and functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, and incoordination, or as a result of repetitive motion and/or flare-ups, the criteria for a rating in excess of 30 percent is not warranted under Diagnostic Code 5201 at any point during the appeal period. Additionally, the evidence does not demonstrate ankylosis of the scapulohumeral articulation or the functional equivalent thereof, impairment of the humerus, or impairment of the clavicle or scapula to warrant a higher and/or separate rating under Diagnostic Codes 5200, 5202, or 5203, respectively. Furthermore, the January 2020 VA examiner found that the Veteran's right shoulder disability did not result in any neurological or muscle group impairment. In this regard, he noted that, while the Veteran's bicep was injured at the time of the shoulder injury, he had fully strength at 5/5 in the bicep, and attachment would appear to be holding with no limitation. Thus, a higher or separate rating for such manifestations is likewise not warranted. In reaching its conclusion in the instant case, the Board acknowledges the Veteran's belief that his right shoulder disability is more severe than as reflected by the current assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence as detailed above, in which a professional with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria, to be more persuasive than his own reports regarding the severity of his right shoulder disability. In this regard, the Board also observes that, in September 2021, the Veteran's daughter reported that she was not allowed to be present in the examination room at the time of the July 2021 VA examination, expressed concern that the Veteran would not be able to answer all of the questions in light of his cognitive deficiencies, and thus was worried that his rating would be reduced. However, upon review of the July 2021 VA examination report, the Board observes that the examiner documented the Veteran's reported symptoms and limitations, which were consistent with his those noted at his prior VA examinations of record, and there is no indication that he was unable to express himself. Furthermore, there has been no reduction in the rating assigned for his right shoulder disability. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected right shoulder disability; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In conclusion, the Board finds that a rating in excess of 30 percent, exclusive of the period where a temporary total rating has been assigned, for the Veteran's right shoulder disability is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.