Citation Nr: 21066682 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 10-10 074 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 20 percent for the service-connected postoperative Bristow repair for anterior dislocation of the right shoulder (right shoulder disability), prior to May 17, 2019, is denied. FINDING OF FACT Prior to May 17, 2019, the Veteran's right shoulder disability was manifested by flexion to no worse than 130 degrees, abduction to no worse than 110 degrees, with no evidence of ankylosis, impairment of the clavicle or scapula, or impairment of the humerus. CONCLUSION OF LAW Prior to May 17, 2019, the criteria for a rating in excess of 20 percent for the Veteran's right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5010-5201 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied a disability rating in excess of 20 percent for the Veteran's right shoulder disability. In September 2012, a hearing was held at the RO before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of that hearing is of record. In February 2013, the Board remanded the matter for further development. In an April 2016 decision, the Board denied the claim. In an October 2017 Memorandum Decision, the United States Court of Veterans Claims (Court) vacated the April 2016 Board decision and remanded the claim to the Board for action consistent with the terms of the Court's decision. In July 2018, the Board remanded the appeal in accordance with the directives set forth in the Court's decision. In a January 2020 decision, the Board awarded a 30 percent rating for the right shoulder disability effective May 17, 2019. In September 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the January 2020 Board decision, with regards to the disability rating for the period prior to May 17, 2019, and remanded the claim to the Board for action consistent with the terms of the JMPR. In June 2021, the Board remanded this matter, and it has since been returned to the Board. Entitlement to a rating in excess of 20 percent, prior to May 17, 2019, for the right shoulder disability is denied. 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 (2012); 38 C.F.R., Part 4 (2020). 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 (2020). 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 appellant working or seeking work. 38 C.F.R. § 4.2 (2020). 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 (2020). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different levels of impairment can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2020). In cases involving joints rated on the basis of limitation of motion, it must be considered whether an additional rating should be given for functional loss due to pain under 38 C.F.R. § 4.40 (including pain on use or during flare-ups) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Veteran filed his claim for a rating in excess of 20 percent for his service-connected right shoulder disability in April 2008. As discussed below, the evidence of record establishes that the Veteran is right hand dominant; therefore, his right shoulder is considered his major shoulder. Normal range of motion for the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Board acknowledges that VA has recently revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the period on appeal is prior to the effective date of the new criteria, the prior criteria remain applicable. Prior to February 7, 2021, under DC 5201, for the major arm, a 30 percent rating is warranted for limitation of motion of the arm midway between the side and shoulder level, while a 40 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. DC 5200 provides that ankylosis of the scapulohumeral articulation is to be rated as follows: favorable ankylosis, with abduction to 60 degrees, can reach mouth and head, 30 percent for the major shoulder; intermediate ankylosis, between favorable and unfavorable, 40 percent for the major shoulder; and unfavorable ankylosis, abduction limited to 25 degrees from side, 50 percent for the major shoulder. A Note provides that the scapula and humerus move as one piece. 38 C.F.R. § 4.71a. DC 5202 provides ratings for other impairment of the humerus. Malunion of the humerus with moderate deformity is rated as 20 percent for the major shoulder; malunion of the humerus with marked deformity is rated as 30 percent for the major shoulder. Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated as 20 percent for the major shoulder; recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are rated as 30 percent for the major shoulder. Fibrous union of the humerus is rated as 50 percent for the major shoulder. Nonunion of humerus (false flail joint) is rated as 60 percent for the major shoulder. Loss of head of the humerus (flail shoulder) is rated as 80 percent for the major shoulder. 38 C.F.R. § 4.71a. DC 5203 provides ratings for other impairment of the clavicle or scapula. Malunion of the clavicle or scapula is rated as 10 percent for the major shoulder. Nonunion of the clavicle or scapula without loose movement is rated as 10 percent for the major shoulder; nonunion of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder. Dislocation of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder. DC 5203 provides an alternative rating based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a. Pertinent evidence of record includes the Veteran's VA treatment records, VA examination reports dated in June 2008, April 2010, April 2013, and August 2014, as well as the Veteran's testimony before the undersigned VLJ in September 2012 and the August 2021 retrospective opinion. During the June 2008 VA examination, the Veteran reported weakness, stiffness, giving way, a lack of endurance, locking, and fatigability. He also reported aching pain three times a day that was only relieved with rest. He characterized his pain as an eight out of ten. Pain was elicited by physical activity and stress. He stated that, when his right shoulder is painful, he could sometimes function with medication and sometimes without medication. He described his functional impairment as limited movement in his shoulder due to pain and stiffness, as well as loss of grip. Upon examination, the Veteran was noted as being right hand dominant. There was evidence of tenderness, but no signs of edema, effusion, weakness, redness, heat, guarding of movement, or subluxation. Range of motion was flexion to 180 degrees with pain at 160 degrees, abduction to 180 degrees with pain at 140 degrees, and internal and external rotation to 90 degrees each with pain at 90 degrees each. The examiner stated that, although the Veteran suffered from pain, fatigue, weakness, lack of endurance, incoordination and pain, his functional limitations did not cause any additional limitation of motion. A July 2008 VA treatment record noted the Veteran's complaint of right shoulder pain, which he rated as a seven out of ten following repetitive use. He stated that, when exacerbated, he felt pain from the anterior portion of his arm down to his fingertips. The Veteran denied weakness and numbness. Range of motion included flexion to 180 degrees with no objective evidence of pain, abduction with objective evidence of pain past 95 degrees, internal rotation with objective evidence of pain past 60 degrees, and external rotation to 90 degrees without pain. Radiographic imaging revealed no evidence of fracture or dislocation. In a September 2008 VA treatment record, the Veteran's range of motion was described as within normal limits, with objective evidence of pain on extension and external rotation, and his muscle strength was normal. During an April 2010 VA examination to address the nature and etiology of his left shoulder disorder, the Veteran stated that when his shoulders are agitated, he felt "useless." The right shoulder disability was diagnosed as post-operative Bristow repair anterior dislocation. Upon examination, there was tenderness in the right shoulder, but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation. The examiner also noted that there was no shoulder ankylosis. Range of motion was flexion to 180 degrees with pain at 180 degrees, abduction to 180 degrees with pain at 140 degrees, and internal and external rotation to 90 degrees each with pain at 90 degrees each. The examiner noted that, although the Veteran suffered from additional functional impact due to pain following repetitive-use testing, his range of motion remained consistent. The examiner also noted that the Veteran was not further limited by fatigue, weakness, lack of endurance, or incoordination. With regard to the effect on employment and daily activities, the examiner noted that he suffered from increased pain with movement and lifting. In February 2012, radiographic imaging revealed no evidence of acute fracture, subluxation, or dislocation. In March 2012, the Veteran reported right shoulder pain that became worse with overhead activities. X-rays revealed acromioclavicular degenerative joint disease and glenohumeral degenerative joint disease. In May 2012, the Veteran received a subacromial space injection due to pain, stiffness, and poor function of the shoulder. During his September 2012 hearing, the Veteran argued that his right shoulder disability had negatively impacted his ability to perform his employment duties due to using his arms to sort mail, including raising his arms over his head. The Veteran denied any problems with dislocation because he did not put it in that position anymore. He stated that performing daily activities, such as cutting the lawn or changing a lightbulb, triggered the onset of pain. He also complained of weakness, and stated that his range of motion was limited. During the April 2013 VA examination, the Veteran was diagnosed with degenerative joint disease of the right shoulder. He complained of chronic aching pain, but reported no recent dislocation and denied flare-ups. Range of motion included flexion to 180 degrees with pain at 120 degrees, and abduction to 180 degrees with pain at 120 degrees. Following repetitive-use testing, the Veteran's range of motion remained consistent. With regard to whether the Veteran suffered from any additional functional loss or impairment following repetitive-use testing, the examiner identified weakened movement and painful movement as additional limitations. Muscle strength was four out of five on both abduction and forward flexion. There was no evidence of ankylosis, and no history of any mechanical symptoms. The examiner noted a history of infrequent subluxation of the glenohumeral joint, as well as a history of degeneration of the clavicle or scapula. With regard to the functional impact, the examiner stated that the Veteran's right shoulder disability would not impact his ability to work. In a July 2014 VA treatment record, the Veteran reported severe aching pain with use, but only minimal pain at rest. He stated that there were times when he would wake in the middle of the night due to pain if he rolled onto his right shoulder. Upon examination, the Veteran had a passive range of motion to 160 degrees, and abduction to less than 110 degrees. In August 2014, x-rays revealed no evidence of an acute fracture or dislocation. Mild acromioclavicular arthritis and mild degenerative spurring of the glenohumeral joint were both noted. Later that same month, the Veteran described his current pain as a six out of ten, but stated that it was a ten out of ten at its worst. He reported avoiding painful activities, and reported being easily fatigued with overhead tasks or putting on shoes or shirt. Active range of motion included flexion to 145 degrees, abduction to 130 degrees, internal rotation to 10 degrees, and external rotation to 90 degrees. The Veteran displayed full passive range of motion with objective evidence of pain. His muscle strength was normal. During the August 2014 VA examination, the Veteran was diagnosed with acromioclavicular and glenohumeral joint arthritis. The Veteran stated that his right shoulder pain was aggravated by lifting, sleeping in the wrong position, and cold weather. He denied flare-ups. Range of motion resulted in flexion to 130 degrees with pain at 130 degrees, and abduction to 125 degrees with pain at 125 degrees. Following repetitive-use testing, the Veteran's range of motion remained consistent. With regard to whether he suffered from any additional functional loss or impairment following repetitive-use testing, the examiner identified less movement than normal and painful movement as additional limitation. The Veteran's muscle strength was normal. There was no evidence of ankylosis. With regard to any other impairment of the clavicle or scapula, the examiner only noted arthritis. With regard to any functional impairment, the examiner stated that the right shoulder disability would not impact his ability to work; however, the Veteran expressed doubt as to whether he could continue to work. Most recently, in August 2021, a VA examiner provided a retrospective opinion regarding the Veteran's functional impairment due to repetitive use over time and during flare-ups for the period prior to May 17, 2019. The examiner noted that he participated in a detailed discussion with the Veteran regarding his daily activities, as well as symptoms following repetitive use and flare-ups throughout the entire appeal period. He concluded that lifting too frequently (repetitive use) and general overuse of the right upper arm resulted in pain, weakness, and incoordination of the right shoulder. He also noted that the Veteran's description of the severity of his daily right shoulder pain was more indicative of a baseline level of pain, as opposed to a true flare-up. The examiner further opined that such functional impairment would expectedly result in changes of range of motion. However, he stated that he was unable to provide any estimation regarding additional loss of range of motion without resorting to mere speculation. He explained that such values would be dependent upon the severity of a flare-up or the amount of repetitive use over time in a particular situation. The Board finds that the August 2021 retrospective opinion is adequate, despite the examiner's statement that he could not provide an opinion without resorting to mere speculation. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A speculative opinion is adequate if the examiner provides a reason why a non speculative opinion could not be rendered. Jones v. Shinseki, 23 Vet. App. 382 (2010). Here, the examiner thoroughly reviewed the claims file, interviewed the Veteran, discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for why a non speculative opinion could not be provided. The Board further finds that, prior to May 17, 2019, the Veteran does not meet the criteria for a disability rating in excess of 20 percent for his right shoulder disability under DC 5201. The examination results do not show that the Veteran's limitation of the motion was limited to midway between his side and his shoulder level. In fact, at its worst, the Veteran's abduction was limited to 110 degrees, and his flexion was limited to 130 degrees. Therefore, the Veteran does not qualify for a 30 percent disability rating under DC 5201 for limitation of motion of the arm prior to May 17, 2019. Additionally, throughout the entire appeal period, the record does not show ankylosis of the scapulohumeral articulation. Therefore, DC 5200 is not applicable. See 38 C.F.R. § 4.71a. Regarding impairment of the humerus under DC 5202, the evidence reflects that the Veteran did not have frequent dislocation with guarding of all arm movements, nor during the appeal period have there been infrequent episodes of recurrent dislocation of the humerus at the scapulohumeral joint. At the September 2012 hearing, the Veteran denied experiencing dislocations. Additionally, he denied any recent dislocations at the April 2013 VA examination. The examination reports of record noted that the right shoulder condition did not result in guarding. Furthermore, the medical evidence does not indicate malunion of the humerus with moderate or marked deformity, loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. As such, a separate rating under DC 5202 is not warranted. Regarding DC 5203, the evidence reflects that the Veteran has not presented with malunion, nonunion, or dislocation of the clavicle or scapula throughout the period on appeal. Although arthritis of the clavicle was documented on multiple occasions, there is no evidence to reflect that this resulted in malunion, nonunion or dislocation. As such, a separate rating under DC 5203 is not warranted. As to whether an increased rating should be assigned for additional functional loss due to pain under 38 C.F.R. § 4.40 (including pain on repetitive use or during flare-ups) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45, there is no showing that the functional loss of the Veteran's right shoulder warrants a higher rating for this period. As indicated above, the Veteran reported pain, fatigue, weakness, stiffness, lack of endurance, incoordination, and limitation of motion due to his right shoulder disability. Indeed, he described difficulty lifting heavy objects and raising his right arm over his head. The June 2008 VA examiner concluded that repetitive use testing did not result in any additional limitation of motion. The April 2010 VA examiner concluded that repetitive use testing resulted only in pain as a functional impact. In April 2013 and August 2014, there was no additional loss of range of motion following repetitive use testing and the examiners noted weakened and painful movement following such testing. In the August 2021 retrospective opinion, the examiner concluded that repetitive use, such as lifting too frequently, and general overuse of the right upper arm resulted in pain, weakness, and incoordination of the right shoulder. He also opined that such circumstances would expectedly result in some additional limitation of motion, but it was not suggested this additional limitation would be to less than to shoulder level. Based upon the evidence of record for the period prior to May 17, 2019, there is no indication that the Veteran's additional functional loss following repetitive use would result in limitation of motion to mid-way between the side and shoulder level as to warrant the next higher rating under DC 5201. Indeed, the Veteran's complaints of painful motion and related symptoms have been considered in the currently-assigned rating. Therefore, an increased disability rating is not justified under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. The Board finds the examinations of record are adequate for rating purposes and that a higher disability rating is not warranted, even when considering the functional effects of pain, to include during flare-ups. In June 2008, the Veteran described daily pain, but did not report any flare-ups of the right shoulder. The pain occurred three times daily, lasted for about three hours, and was precipitated by physical activity and stress. In April 2010, he reported daily flare-ups that lasted the entire day and were precipitated by physical activity. During such flare-ups, he experienced loss of grip and limitation of motion due to pain. Notably, in April 2013 and August 2014, the Veteran denied experiencing flare-ups. In the August 2021 retrospective opinion, the examiner concluded that the Veteran's description of flare-ups prior to May 2019 were more indicative of a baseline level of severity, as opposed to true flare-ups. Here, the reports of exacerbation or flare-ups are not quantifiable and not of sufficient duration to warrant a change in evaluation. Furthermore, the VA examiners obtained complete information regarding the severity and frequency of the reported flare-ups, as well as resulting functional limitations. Thus, the Board finds the examination reports of record are adequate for rating purposes and that a higher disability rating is not warranted, even when considering the functional effects of pain, to include during flare-ups. Overall, the Board finds that a rating in excess of 20 percent, for the period prior to May 17, 2019, for the Veteran's right shoulder disability is not warranted. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.