Citation Nr: A21016386 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 200518-83992 DATE: October 5, 2021 ISSUE Entitlement to an increased rating in excess of 20 percent for bursitis, right shoulder (dominant) with rotator cuff tendonitis/tear and degenerative joint disease. ORDER Entitlement to an increased rating in excess of 20 percent for bursitis, right shoulder (dominant) with rotator cuff tendonitis/tear and degenerative joint disease is denied. FINDING OF FACT The Veteran's bursitis, right shoulder (dominant) with rotator cuff tendonitis/tear and degenerative joint disease, is primarily manifested by limitation of motion greater than midway between the Veteran's side and right shoulder level. CONCLUSION OF LAW The criteria for an initial increased rating in excess of 20 percent for right shoulder bursitis, right shoulder (dominant) with rotator cuff tendonitis/tear and degenerative joint disease, have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5019-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from February 1990 to February 1994. This matter is before the Board on appeal from an April 2020 rating decision. By way of background, the RO issued a rating decision in November 2019, and in response the Veteran filed a Notice of Disagreement (NOD) in December 2019. In February 2020 the Veteran filed as supplemental claim, opting into the new appeal system under the Appeals Modernization Act (AMA). In response to the Veteran's supplemental claim, the RO issued an April 2020 rating decision, which noted that, "[i]n support of your claim, new and relevant evidence has been received and your claim is now reconsidered." However, the RO found that the evidence did not indicate an increase in severity. The Veteran then filed an appeal to the Board (using a Form 10182) and requested Direct Review of the April 2020 rating decision. The issue of entitlement to an increased rating in excess of 20 percent for bursitis of the right shoulder is now before the Board under Direct Review. Moreover, the Board notes that in the May 2020 Form 10182, appeal to the Board, the Veteran also requested Direct Review of the rating assigned to his service-connected GERD, hiatal hernia, and noted a February 2020 rating decision. However, the Board notes that prior to the filing of the Form 10182, the Veteran requested a Higher-Level Review of his service-connected GERD, hiatal hernia, with the request dating March 2020. Therefore, the Veteran's request for Direct Review from the Board was made during the pendency of the Higher-Level Review, and was, therefore, made concurrently. Concurrent requests for different reviews are specifically prohibited under 38 C.F.R. § 3.2500 (b), which states, "[A] claimant who has filed for review under one of the options available under paragraph (a) of this section may not, while that review is pending final adjudication, file for review under a different available option." Thus, the Board notes that the appeal related to the rating of the Veteran's service-connected GERD, hiatal hernia, was not properly appealed to the Board and is not considered in this decision. As the Veteran is unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to an increased rating in excess of 20 percent for bursitis, right shoulder (dominant) with rotator cuff tendonitis/tear and degenerative joint disease is denied. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's right shoulder disability is evaluated under DC 5019-5201. The Board notes that the regulations pertaining to rating the shoulders have been amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a , DC 5271). These amendments provide specific ranges of motions required to meet the diagnostic criteria. However, the Board notes that these amendments are not applicable any earlier than their effective date. As there is no evidence dated after February 7, 2021, these amendments are not for application. Diagnostic Code 5019 instructs that a bursitis disability is to be rated under DC 5003, which in turn, provides a minimum 10 percent disability rating on the basis of painful arthritis and noncompensable limitation of motion caused by pain. If, however, the bursitis disability results in a compensable limitation of motion, then DC 5003 directs the disability to be rated under the appropriate Diagnostic Code for the specific joint or joints involved, which in this case would be for the limitation of motion of the arm under DC 5201. Under DC 5201, limitation of motion of an arm at shoulder level warrants a 20 percent evaluation for the major extremity. Limitation of the arm midway between side and shoulder level warrants a 30 percent evaluation. When motion is limited to 25 degrees from the side, a 40 percent evaluation is appropriate for the major extremity. See 38 C.F.R. § 4.71a. As the Veteran is right-handed, this disability involves his major extremity. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 20 percent for right shoulder bursitis (dominant) with rotator cuff tendonitis/tear and degenerative joint disease. The evidence shows that the Veteran's right shoulder disability does not result in limitation of the arm midway between side and shoulder level, to warrant a 30 percent rating. Throughout the period on appeal, the Veteran has reported limitation of motion, with constant and radiating pain. Specifically, in a February 2020 statement, the Veteran stated that his shoulder is frozen and that he experiences pain and discomfort that interferes with his sleep. The Veteran noted that he is pending an operation on his right shoulder and that he believes his right shoulder disability has worsened since his last rating of 20 percent. VA examination in September 2019 indicates decreased range of motion of the right shoulder with flexion limited to 85 degrees, abduction limited to 60 degrees, external rotation limited to 60 degrees, and internal rotation limited to 55 degrees. The examiner noted pain with weight bearing, and tenderness with palpation. After repetitive use, the Veteran's right shoulder range of motion measured the following: flexion limited to 80 degrees, abduction limited to 55 degrees, external rotation limited to 60 degrees, and internal rotation limited to 55 degrees. Strength was noted to be normal with no muscle atrophy. Shoulder instability or dislocation was not suspected, and no loss of head (flail shoulder), nonunion, or fibrous union of the humerus was found. The examiner noted no malunion of the humerus with moderate or marked deformity, and no humerus condition that affects the range of motion of the shoulder joint. The Veteran underwent another VA examination March 2020. The examination report indicates limited right shoulder range of motion with flexion limited to 150 degrees, abduction limited to 150 degrees, external rotation limited to 80 degrees, and internal rotation limited to 80 degrees. The examiner noted pain with weight bearing. After repetitive use the Veteran's range of motion measured as follows: flexion limited to 150 degrees, abduction limited to 150 degrees, external rotation limited to 80 degrees, and internal rotation limited to 80 degrees. During flare-ups the range of motion was described to measure: flexion limited to 150 degrees, abduction limited to 150 degrees, external rotation limited to 80 degrees, internal rotation limited to 80 degrees. Strength on forward flexion measured 4/5 and abduction measured 4/5. No ankylosis was noted and pain during passive ROM was indicated. The Veteran tested positive when performing Hawkins' Impingement Test, Empty-can Test, External Rotation/ Infraspinatus Strength Test, and Lift-off Subscapularis Test, all indicating a rotator cuff condition. However, the examiner did not find loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. The examiner further did not find malunion of the humerus with moderate or marked deformity, nor a humerus condition that affects range of motion of the shoulder joint. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and concludes that the preponderance of the evidence is against a finding of limitation of the right arm midway between side and shoulder level, which is the criteria needed for a 30 percent rating. While the Veteran explains that his "shoulder is frozen," the VA examinations of record report that at its worst, the Veteran's right shoulder disability is manifested by abduction limited to 55 degrees and flexion limited to 80 degrees, both measurements indicating movement better than midway between the side and shoulder. Therefore, considering the evidence of record documenting the Veteran's complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in the limitation of the arm midway between side and shoulder level, which would be required for a finding that the Veteran was entitled to a 30 percent disability rating. Thus, a rating higher than 20 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this part of the appeal period. Moreover, the Board notes that pursuant to DC 5202, a 20 percent disability rating is warranted for moderate deformity due to malunion of the humerus. See 38 C.F.R. § 4.71a DC 5202. A 30 percent disability rating is warranted for marked deformity. Id. A 20 percent disability rating is warranted for infrequent episodes of recurrent dislocation of the humerus at the scapulohumeral joint, and guarding of movement only at shoulder level. Id. A 30 percent disability rating is warranted for frequent episodes of recurrent dislocation of the humerus at the scapulohumeral joint, and guarding of all arm movements. Id. A 50 percent disability rating is warranted for fibrous union of the humerus. Id. A 60 percent disability rating is warranted for nonunion of the humerus (false flail joint). Id. A maximum 80 percent disability rating is warranted for loss of head of humerus (flail shoulder). Id. Yet, in light of the foregoing, the Veteran is neither entitled to a rating in excess of 20 percent under DC 5201 nor a separate rating under DC 5202. The Board notes that the Veteran's medical evidence during the period on appeal does not indicate recurrent dislocation of the humerus at the scapulohumeral joint, guarding of all arm movements, fibrous union of the humerus, or nonunion of the humerus (false flail joint). The record also does not show loss of head of humerus (flail shoulder). Moreover, the Board finds that the Veteran cannot receive separate, compensable ratings under DCs 5201 and 5202. The critical element in permitting the assignment of ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Under DC 5201 and DC 5202, both contemplate limitation of motion of the arm. For example, the 20 percent rating under DC 5201 specifically contemplates motion of the arm limited to shoulder level. The 20 percent and 30 percent ratings under DC 5202 contemplate infrequent episodes of recurrent dislocation contemplates "guarding of movement only at shoulder level" or "guarding of all arm movements." The arm being limited to shoulder level or being limited in all movements specifically contemplates the arm not being able to move because of painful motion, which the Board finds is pyramiding with DC 5201, as DC 5201 specifically contemplates painful motion of the arm. In sum, the preponderance of the evidence is against a disability rating in excess of 20 percent for the right shoulder disability for the entire period on appeal. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.