Citation Nr: 21066362 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-08 345 DATE: October 29, 2021 ORDER Entitlement to a rating of 30 percent for a right shoulder disability prior to January 8, 2016, is granted. Entitlement to a rating in excess of 30 percent for a right shoulder disability for the entire period on appeal is denied. FINDING OF FACT The Veteran's right shoulder condition is characterized by limitation of motion of the right arm to midway between the side and shoulder level; the Veteran has not exhibited range of motion limited to 25 degrees from the side. CONCLUSION OF LAW The criteria required for a rating of 30 percent, but no higher, for a right shoulder disability for the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5019, 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Office of Original Adjudication (AOJ). This appeal was remanded by the Board in July 2020 and in May 2021, following a March 2020 Joint Motion for Partial Remand from the Court of Appeals for Veterans Claims. The most recent March 2021 remand indicated that records from Dr. Pearsall may be outstanding, and the appeal was returned to the AOJ to obtain authorization for treatment records from Dr. Pearsall and any other healthcare providers, including Dr. Hall. An authorization form was provided to the Veteran in June 2021. The Veteran responded and stated that Dr. Pearsall was no longer in practice, but the Veteran attached all of the medical records from the doctor in his possession. Therefore, there has been substantial compliance with the May 2021 remand. The Board also finds substantial compliance with the July 2020 remand, as discussed in further detail below. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 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 flares from the veterans themselves, when a flare-up is not observable at the time of examination. Entitlement to an increased rating for a right shoulder disability The Veteran's right shoulder disability is currently rated at 20 percent disabling prior to January 8, 2016, and at 30 percent thereafter. 38 C.F.R. § 4.71a, DC 5019 5201. A March 2014 rating decision continued the Veteran's rating of 20 percent for impingement syndrome in response to a November 2013 claim for an increased evaluation. The Veteran's rating was increased to 30 percent as of January 8, 2016, pursuant to a June 2019 Board decision. The Board notes that while the Veteran was originally granted service connection for impingement syndrome, the Veteran is now also diagnosed with osteoarthritis of the right shoulder, which the January 2021 VA examiner found was related to the Veteran's in-service injury. As such, the Board will consider the symptoms and limitations resulting from both the Veteran's impingement syndrome and osteoarthritis in evaluating the right shoulder disability. The Veteran's right extremity is his major (dominant) extremity. Under Diagnostic Code 5201, a 20 percent disability rating is contemplated for limitation of motion of the major arm at shoulder level. A 30 percent disability rating is warranted for limitation of the major arm to midway between side and shoulder level. A 40 percent disability rating is warranted when motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. 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). At the March 2014 VA Shoulder and Arm Conditions examination, the Veteran exhibited right shoulder flexion to 120 degrees and abduction to 110 degrees after repetitive use and considering painful motion, but the examiner stated they could not estimate function on flare-ups without resorting to speculation. The shoulder exhibited 5/5 strength, no ankylosis, positive empty-can and lift-off subscapularis tests, and no acromioclavicular (AC) joint impairment. A May 2014 disability benefits questionnaire (DBQ) filled out by a private provider indicated that the Veteran exhibited right shoulder flexion and abduction to 170 degrees, including following repetitive use testing, with no objective evidence of painful motion. The examiner stated the Veteran has less movement than normal and pain in the right shoulder after repetitive use testing, but did not indicate where pain began. There was no evidence of ankylosis, or impairment of the humerus, clavicle, or scapula. A January 2015 orthopedic surgical consultation showed range of motion of 160 degrees of flexion and abduction, as well as positive testing for rotator cuff impingement. The provider noted that the Veteran had significant arthritis of the acromioclavicular joint. At the January 2016 VA Shoulder and Arm Conditions examination, the Veteran exhibited right shoulder flexion to 70 degrees and abduction to 80 degrees, with no additional functional loss after repetitive use. The examiner noted pain and stated that this causes functional loss. The examiner was unable to opine the Veteran's functional loss due to flare-ups without resorting to speculation. The examination showed 4/5 strength, positive Hawkins', empty-can and lift-off subscapularis tests, with osteoarthritis of the AC joint. There was no evidence of impairment of the humerus. At the June 2016 VA Shoulder and Arm Conditions examination, the examiner stated he was unable to test range of motion due to the Veteran's hypersensitivity and effort. The examiner found 5/5 strength, no ankylosis, no clavicle, scapula, or AC joint conditions, and no impairment of the humerus. At the January 2021 VA Shoulder and Arm Conditions examination, the Veteran exhibited flexion and abduction to 60 degrees, with no additional functional loss on repetitive use. The examiner found that pain would cause additional functional loss during flare-ups, and described flexion and abduction during flares as limited to 55 degrees. The examination showed 4/5 strength, no ankylosis, and no impairment of the humerus. The examiner found there was no evidence of pain on passive range of motion and no evidence of pain on non-weight bearing. The examiner noted pain on weight bearing, but indicated that the pain does not cause functional loss. The Veteran has consistently reported pain and limited range of motion of his right shoulder throughout the period on appeal. Private medical records from A.P., M.D., indicate the Veteran reported 6/10 through 10/10 pain, periodic flares, and joint tenderness. 2020 private provider records from S.C., M.D., indicate the Veteran reported gradual worsening and stated that reaching overhead exacerbated pain. In a March 2016 letter, the Veteran stated that chronic pain, limited mobility, swelling, and inflammation have deteriorated his ability to function normally on a daily basis and he should be awarded the highest percentage that VA allows. Considering the Veteran's reports of flare-ups, and his description of pain and range of motion during those flare-ups, as well as the 2021 VA examiner's findings that the Veteran's flexion and abduction would be limited to 55 degrees during flare-ups, the Board finds that the Veteran's range of motion most closely approximates a limitation midway between his side and shoulder level. Therefore, the Veteran's right shoulder disability most closely approximates the 30 percent criteria for the entire period on appeal. 38 C.F.R. § 4.71a, DC 5019 5201. A rating in excess of 30 percent is not warranted. While the Board acknowledges the Veteran's contention that he is entitled to the highest rating for his shoulder disability, the Veteran's medical records and lay statements do not indicate he has had range of motion of the right arm limited to 25 degrees from his side. None of the VA examinations, private medical records, or the private DBQ indicate a range of motion in flexion or abduction of less than 55 degrees. In addition, while the Veteran has contended pain, especially on reaching or doing activities overhead, his statements do not indicate functional limitations so severe as to approximate a range of motion of the right arm limited to 25 degrees from his side. The Board finds that the rating criteria contemplate the symptoms manifested by the Veteran's various disabilities on appeal. The discussion above reflects that the symptoms of the Veteran's disabilities, to include weakened movement, excess fatigability, incoordination, and pain on movement, are fully contemplated by the applicable rating criteria. The Board notes that pain is contemplated in the rating criteria for all musculoskeletal disabilities, and it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In addition, weakness and lack of endurance are contemplated in the ratings for all orthopedic disabilities. See 38 C.F.R. §§ 4.40, 4.45. The Board acknowledges that a retrospective opinion on the severity of the Veteran's condition prior to January 8, 2016, has not been obtained, as requested in the July 2020 Board remand. The Board further acknowledges that the 2014 and 2016 VA examinations do not adequately consider the Veteran's functional limitations considering passive and active range of motion, range of motion on weight bearing and non-weight bearing, and during flare-ups. However, the 2021 VA examination does address these areas, indicating flexion and abduction of 60 degrees with no additional functional limitation on weight bearing, and no pain on passive range of motion or non-weight bearing. Further, the 2021 examiner estimated abduction and flexion to 55 degrees during flares, and indicated the Veteran had no additional functional loss on passive range of motion and on weight bearing. Accordingly, as the 2021 VA examination is adequate and considered limitations including pain and flare-ups, this examination along with the Veteran's lay statements is being used to evaluate the severity of the Veteran's condition for the entire period on appeal. There is no indication that the Veteran's condition has improved as of the January 2021 examination, therefore basing the Veteran's rating on the most recent examination eliminates the need for a retrospective opinion. Therefore, there has been substantial compliance with the July 2020 remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board observes that the rating schedule contains additional diagnostic codes pertaining to the shoulder and arm. See 38 C.F.R. § 4.71a, DCs 5200, 5202, and 5203. The Board has considered whether an increased evaluation would be in order under other relevant diagnostic codes, but finds that the criteria for a rating in excess of 30 percent are not met. The medical evidence of record does not show scapulohumeral articulation ankylosis, which is required for a rating under Diagnostic Code 5200. In addition, the record does not indicate impairment of the humerus, which is required for a rating under Diagnostic Code 5202. The 2014 private provider DBQ identified a clavicle or scapula condition. However, the examiner did not identify a dislocation, nonunion, or malunion, which is required for a rating under Diagnostic Code 5203. Without these conditions, Diagnostic Code 5203 indicates the impairment should be rated on the function of the contiguous joint. As noted above, the Veteran's disabilities are currently rated based on the range of motion of the shoulder, and as such his symptoms are adequately accounted for by rating under Diagnostic Code 5201. As noted above, the Board has considered the symptoms from both the Veteran's impingement syndrome and arthritis in rating the right shoulder. The Veteran is not entitled to separate ratings for each condition, as both cause pain and reduced range of motion, which is contemplated under Diagnostic Code 5201. To assign an additional disability rating based on pain or reduced range of motion would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. The Board notes that effective February 7, 2021, VA amended Diagnostic Code 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 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 40 percent rating for the major joint. The Board finds the Veteran is not entitled to a rating in excess of 30 percent under the amended criteria for the period from February 7, 2021, either. (Continued on the next page) Therefore, the preponderance of the evidence supports finding that the Veteran's right shoulder disability meets the rating criteria for 30 percent, but no higher, during the entire period on appeal. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.