Citation Nr: 21067075 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-49 411 DATE: November 3, 2021 ORDER Entitlement to an increased rating in excess of 40 percent for degenerative arthritis of the right shoulder is denied. Entitlement to an increased rating in excess of 40 percent for degenerative joint disease of the thoracic and lumbar spine is denied. FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the right shoulder is rated as 40 percent disabling, which is the maximum schedular rating permitted for limitation of motion of the arm of the major extremity. 2. The Veteran's degenerative joint disease of the thoracic and lumbar spine is manifest by painful motion and forward flexion limited to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 40 percent for degenerative arthritis of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to an increased rating in excess of 40 percent for degenerative joint disease of the thoracic and lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from April 1983 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were remanded by the Board in November 2019 for contemporaneous VA examinations that comply with the findings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). VA examinations were obtained in February 2020; thus, the Board finds that the RO has substantially complied with the November 2019 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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 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). 1. Entitlement to an increased rating in excess of 40 percent for degenerative arthritis of the right shoulder The Veteran contends that his right shoulder is worse than as reflected by his 40 percent evaluation, and he believes that his shoulder is worse during flare-ups entitling him to an increased evaluation. See September 2021 Appellate Brief. The Veteran's right shoulder disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of arm. 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 from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, under Diagnostic Code 5201, limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. As of February 7, 2021, under the amended criteria, 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 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 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). The Board notes that the Veteran is right-hand dominant; therefore, his right shoulder disability affects his major extremity. See 38 C.F.R. § 4.69. The Board notes that the Veteran filed his claim for increased evaluation on October 27, 2016 ; the Board has considered the evidence of record since October 27, 2015 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). The evidence relevant to the severity of the Veteran's right shoulder disability includes a December 2016 VA examination. The Board notes that the November 2019 Board Remand determined that this examination is inadequate as the examiner failed to properly estimate the Veteran's disability during flare-ups and failed to evaluate both passive and active range of motion. Nevertheless, the Board finds that the Veteran's statements made at the time of the examination and the objective findings of the examiner are pertinent to the current claim. During the December 2016 VA examination, the Veteran stated that he has pain at the shoulder joint with limited tolerance for overhead movements. He also reported experiencing flare-ups and he has to limit the use of his right arm during flare-ups. The Veteran reported having functional loss or impairment as he is unable to do most overhead movements with his right arm. Upon range of motion testing, the Veteran's right shoulder flexion and abduction were limited to 55 degrees. Pain was noted on the examination and causes functional loss. He was able to perform observed repetitive use without additional loss of function or range of motion. The Veteran had reduced muscle strength of the right shoulder, but there was no evidence of muscle atrophy. There was no evidence of ankylosis, shoulder instability, or impairment of the humerus. Most recently, the Veteran was afforded a VA examination in February 2020. The Veteran stated that he continues to have shoulder pain and limited capacity for overhead movements with his dominant side. He also reported flare-ups, contending that he cannot use his right arm during flare-ups. He reported functional loss and impairment as he is limited in heavy weightlifting above chest level. Upon range of motion testing, his flexion and abduction were limited to 50 degrees. Pain was noted on the examination but does not result in or cause functional loss. He was able to perform observed repetitive use testing without additional loss of function or range of motion. During flare-ups and after repeated use over time, the examiner opined that pain significantly limits the Veteran's functional ability. However, the Veteran stated that his range of motion is the same as measured during flare-ups and after repeated use. There were no signs or symptoms of muscle atrophy, ankylosis, or impairments of the humerus. The Veteran's VA treatment records include diagnostic findings of the right shoulder. In September 2016, his right shoulder MRI was unremarkable. In May 2017, his right shoulder MRI revealed rotator cuff tendinosis, partial bursal sided tear at the supraspinatus tendon, minor partial tears at the most superior fibers insertional fibers of the supraspinatus tendon and the insertional fibers of the infraspinatus tendon, intra articular biceps tendinosis, mild degenerative changes at the glenohumeral joint posterosuperior labrum tear, mild subacromial/subdeltoid bursitis, and mild to moderate degenerative changes at the acromioclavicular joint. During a September 2016 orthotics consultation, the Veteran reported chronic right shoulder pain. He reported worsening symptoms with movement affecting his activities of daily living, and an improvement of his symptoms after resting his right arm. He denied any numbness, weakness, tingling sensation, or burning sensation of his right arm. The physician observed limited passive and active range of motion with flexion and abduction secondary to pain. The physician opined that there may be a psychological component of pain with few organic causes identified. The Veteran's VA treatment records contain a few other complaints of right shoulder pain. After careful consideration of the evidence, the Board finds that the preponderance of the evidence is against an evaluation in excess of 40 percent under Diagnostic Code 5201 for the right shoulder condition. The Board notes that the Veteran is in receipt of the highest schedular rating for limitation of motion of the arm of the major extremity under both the old schedular criteria and the revised criteria. Therefore, there is no basis to award a higher rating. Furthermore, the Board notes that the most recent VA examination noted that the Veteran's flexion and abduction of the right shoulder were limited to 50 degrees, which only warrants a 30 percent rating under both the old and revised schedular criteria. The Board has considered whether any other diagnostic codes related to disabilities of the shoulder would provide for a higher disability rating. Specifically, the Veteran contends that his right shoulder disability is more severe during flare-ups. However, during the February 2020 VA examination, the examiner did opine that pain significantly limits the Veteran's functional ability during flare-ups, but the Veteran stated that his range of motion remains the same. Still, the Board has considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5200 for ankylosis of scapulohumeral articulation. See 38 C.F.R. § 4.71a. Though, the evidence does not reflect that the Veteran's symptoms, including pain and limitation of movement are more nearly approximate to a finding of ankylosis to warrant a higher rating under Diagnostic Code 5200. Ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd Ed. 2012). Neither the December 2016 VA examiner nor the February 2020 VA examiner found any evidence of ankylosis of the right shoulder. The Board notes that during the February 2020 VA examination, the Veteran did state that he cannot use his right arm during flare-ups, but during the same VA examination it was noted that his range of motion remains unchanged during flare-ups. As the Veteran's contention that he cannot use his arm is internally inconsistent with other statements made during the February 2020 VA examination, the Board finds the Veteran's contention that he cannot use his right arm during flare-ups is incredible. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (per curiam). Consequently, the Board affords more probative weight to the objective medical findings of the VA examiners. Accordingly, the Board concludes that the preponderance of the evidence shows that the Veteran's right shoulder is not immobile or consolidated, and thus the assignment of a rating based on ankylosis is not warranted. The Board also considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5202 for other impairment of humerus. 38 C.F.R. § 4.71a. However, the December 2016 and February 2020 VA examiners did not find any evidence of a humerus condition or impairment. Additionally, the May 2017 MRI was negative for any impairments of the humerus. Therefore, a higher rating under Diagnostic Code 5202 is not warranted. As the Veteran already has the maximum schedular disability rating, a rating in excess of 40 percent for a right shoulder disability is denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 2. Entitlement to an increased rating in excess of 40 percent for degenerative joint disease of the thoracic and lumbar spine The Veteran contends that his low back disability is more disabling than reflected by his 40 percent rating. He further contends that his back is more severe during flare-ups and his flare-ups are severe enough to consider a rating analogous to ankylosis of the spine. See September 2021 Appellate Brief. The Veteran's degenerative joint disease of the thoracic and lumbar spine is currently evaluated under Diagnostic Code 5242, which evaluates spine disabilities using the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. Note 1 indicates that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment should be separately evaluated under rhe appropriate diagnostic code. 38 C.F.R. § 4.71a. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. The Board notes that the Veteran filed his claim for increased evaluation on October 27, 2016; the Board has considered the evidence of record since October 27, 2015 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). Evidence relevant to the severity of the Veteran's spine disability includes a December 2016 VA examination. As previously noted, the Board determined that the examination was inadequate. However, the Board finds that the Veteran's statements along with objective medical evidence is relevant to the claim. During the examination, the Veteran stated that during flare-ups, "[he] keep[s] bedrest and use[s] tramadol." He reported that his disability results in functional loss and impairment as he cannot walk as before or do household activities due to pain. Upon range of motion testing, his forward flexion was limited to 45 degrees with the reduced range of motion contributing to functional loss as the Veteran is unable to reach the ground with his upper extremities. The examiner determined that the Veteran had guarding of the spine resulting in abnormal spinal contour to include decreased lordosis. Additional factors contributing to the Veteran's disability includes disturbance of locomotion due to pain. There were no signs or symptoms of radiculopathy, ankylosis, muscle atrophy, or invertebral disc syndrome (IVDS). More recently, during the February 2020 VA examination, the Veteran reported that he continues to have pain at the low back during activities of daily living and he has limited capacity for heavy weight-handling activities. Upon range of motion testing, the Veteran's forward flexion was limited to 40 degrees. The examiner opined that range of motion itself contributes to functional loss as the Veteran is limited to reach the ground with his upper extremities. Pain was noted on the examination and causes functional loss. The Veteran was able to perform observed repetitive use testing without additional loss of function or range of motion. The examiner opined that pain significantly limits functional ability after repeated use and during flare-ups and estimated that the Veteran's range of motion would decrease to 25 degrees at forward flexion. The examiner noted that he estimated the Veteran's range of motion based on his lay statements and the use of the visual scale on the goniometer. The examiner noted guarding resulting in abnormal spinal contour, to include flat lordosis. Additional factors contributing to the Veteran's disability include disturbance of locomotion as the Veteran suffers from painful ambulation. The examiner noted reduced muscle strength, but the Veteran does not have muscle atrophy. Additionally, there were no signs or symptoms of radiculopathy, ankylosis, or IVDS. The Veteran's VA treatment records include diagnostic findings of the spine. A November 2015 x-ray noted mild dextroscoliosis and spondylotic changes of the spine. A September 2016 MRI of the lumbar spine showed lumbar spondylosis and discogenic changes. In September 2016, the Veteran also had an orthotics consultation for persistent low back pain. He denied any bowel or bladder problems. The examiner noted that the Veteran ambulated with a one-point cane. The examining physician also noted that the physical examination was not significant for a clear diagnosis and there may be a psychological component of pain with few organic causes identified. The Veteran's VA treatment records includes continued complaints for persistent and severe chronic low back pain. After careful consideration of the evidence, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for degenerative joint disease of the thoracic and lumbar spine. The evidence shows that upon range of motion testing, the Veteran's forward flexion was limited to no less than 40 degrees, which warrants a 20 percent rating. Both the December 2016 and February 2020 VA examiner noted that the Veteran had guarding resulting in abnormal spinal contour, but this too only warrants a 20 percent rating. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and limited movement during flare-ups. The February 2020 VA examiner considered the Veteran's lay statements regarding flare-ups when estimating that the Veteran's forward flexion would be limited to 25 degrees during a flare-up, which warrants a 40 percent evaluation. Therefore, even when considering the Veteran's reported symptoms during flare-ups, the degree of additional limitation reflected by his statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Also, the Board has considered the Veteran's contentions that his flare-ups are severe enough to warrant a rating analogous to ankylosis of the spine. However, neither the Veteran's statements nor the objective evidence of record warrants a finding that the Veteran's thoracolumbar spine results in a fixed flexion or extension or one of the other conditions noted in Note 5 during flare-ups. During the December 2016 VA examination the Veteran reported that he keeps bed rest during flare-ups and during the February 2020 VA examination he reported that he is unable to do most physical activities. At no time, did the Veteran report that his back is in a fixed position during flare-ups. Accordingly, an evaluation greater than 40 percent for degenerative joint disease of the thoracic and lumbar spine is not warranted. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. There was no evidence of radiculopathy or any other neurological abnormalities during the December 2016 or February 2020 VA examinations. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for degenerative joint disease of the thoracic and lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.