Citation Nr: 21067334 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 11-16 663 DATE: November 3, 2021 ORDER Entitlement to an initial 30 percent rating for the period prior to July 8, 2014, for a left shoulder disability is granted. FINDING OF FACT For the period prior to July 8, 2014, the Veteran's left shoulder disability is characterized by limitation of motion from midway between the side of the body and shoulder level; limitation of motion to 25 degrees from the side of the body is not shown. CONCLUSION OF LAW For the period prior to July 8, 2014, the criteria for a 30 percent rating, but no higher, for a left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45,4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1985 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge during a hearing in April 2018. This appeal was previously decided by the Board of Veterans' Appeals (Board) in January 2021. In its decision, the Board denied entitlement to a rating in excess of 20 percent for the period prior to July 8, 2014, for a left shoulder disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and, in July 2021, the Veteran and the Acting Secretary of Veterans Affairs (collectively, the Parties) filed a Joint Motion for Partial Remand (JMPR). In that JMPR, the Parties moved the Court to vacate and remand the part of the Board's January 2021 decision that denied entitlement to a rating in excess of 20 percent for the period prior to July 8, 2014, for the Veteran's left shoulder disability. The Parties agreed this is the only issue from the January 2021 Board decision that is being challenged. The Court granted that JMPR in July 2021. As a result, this matter is again before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity, or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability, and actual painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is asserted due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. 29 Vet. App. 26 (2017). The Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Entitlement to an initial rating in excess of 20 percent for the period prior to July 8, 2014, for a left shoulder disability. The Veteran is seeking entitlement to a rating in excess of 20 percent for his left shoulder disability, diagnosed as degenerative joint disease, for the period prior to July 8, 2014. By way of background, service connection for this disability was granted in the January 2009 rating decision presently on appeal, and an initial rating of 20 percent, effective from March 10, 2008, was assigned. However, in a July 2020 Board decision, the Board determined there was clear and unmistakable error (CUE) in a prior April 1987 rating decision and determined that the left shoulder disability warrants a separate rating from November 29, 1986. Therefore, the applicable appeal period is from the grant of the date of service connection for this disability, which in this case is November 29, 1986 to July 7, 2014. As an initial matter, the record reflects that a June 1986 service treatment record indicates the Veteran is right hand dominant, while the record reflects the Veteran has consistently asserted he is ambidextrous. See June 2008, July 2014, and September 2019 VA Shoulder and Wrist Conditions DBQs; October 2020 VA Muscle Conditions DBQ; and October 2020 VA Peripheral Nerves Conditions DBQ. The injured extremity, or the most severely injured extremity, of an ambidextrous individual will be considered the dominant hand for rating purposes. The Board will resolve doubt in the favor of the Veteran and find that his left extremity is the dominate extremity. Thus, the left upper extremity is the dominant, as his left upper extremity is rated higher than the right upper extremity. See 38 C.F.R. § 4.69. Given such, the applicable rating will be assigned under the "Major" rating. The Board further notes that changes to the Schedule of Ratings for the Musculoskeletal System, which included the rating criteria for shoulders, went into effect on February 7, 2021. However, as this issue addresses only the period prior to July 8, 2014, the recent changes to the rating criteria for shoulders are not applicable here. Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. The Federal Circuit has held that the plain language of 38 C.F.R. § 4.71(a) confirms that a veteran is only entitled to a single disability rating under Diagnostic Code 5201 for each arm that suffers from limited motion at the shoulder joint. The diagnostic code 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 (Fed. Cir. 2013). Diagnostic Codes 5200-5203 distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. As discussed above, the Board has determined that the Veteran's left extremity is his dominate extremity. Given such, the applicable rating will be assigned under the "Major" rating. Diagnostic Code 5201 provides that limitation of motion of the arm at shoulder level warrants a 20 percent rating. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of motion of 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. In this case, the Board finds that the Veteran's left shoulder disability symptoms most closely approximate the criteria for a 30 percent rating for the period prior to July 8, 2014. In this regard, the record shows that the Veteran's left arm was crushed during a motor vehicle accident (MVA) in service. During a March 1987 VA examination, the Veteran reported pain in his left arm and noted that he "could not use" his arm. The VA examiner noted that the Veteran's left arm was very nearly amputated in the accident and that there was "no functional use" of the left arm. The March 1987 VA examiner's diagnosis was crushed left arm laterally with median, ulnar, and radial nerve and brachial artery damage with "functionless" left upper extremity. Records from 1991 also show the Veteran reporting pain in his left upper extremity increased. Moreover, in a June 2008 VA examination, the Veteran, while demonstrating flexion and abduction to the shoulder level (90 degrees), reported constant residual pain in his left shoulder and arm that is aggravated whenever used. Furthermore, March 2012 VA treatment records indicate the Veteran reporting significant stiffness in his left shoulder, as well as limited range of motion. Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds the range of motion of the left shoulder for the period prior to July 8, 2014, more closely resembles motion limited to midway between the side and shoulder level. The evidence does not demonstrate limitation of the left arm to 25 degrees from the side at any time during the period prior to July 8, 2014. Id. As such, the next higher 40 percent rating is not warranted. The Board has also considered whether a higher rating is warranted under any other diagnostic codes for the shoulder. In this respect, an evaluation in excess of 30 percent is available if there is ankylosis of scapulohumeral articulation, fibrous union of the humerus, nonunion of the humerus (false flail joint), and loss of head of the humerus (flail shoulder). 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. The Board notes, however, that the Veteran's left shoulder is not productive of ankylosis of scapulohumeral articulation or impairment of the humerus. The VA examinations specifically note no ankylosis, no shoulder instability, and no impairment of the humerus. Thus, the Board finds that Diagnostic Codes 5200 and 5202 are not for application. In addition, the discussion above reflects that all the symptoms of the Veteran's service-connected left shoulder disability are contemplated by the applicable rating criteria. The various functional loss factors of his disability, including pain, weakness, and lack of endurance, have been fully considered and are contemplated in the rating schedule. That is, the Board finds that these symptoms are contemplated under the relevant rating criteria and under the DeLuca criteria, including §§ 4.40 and 4.45, which compensate for limitation of motion, and symptoms such as pain, weakness, and instability producing functional limitations. 38 C.F.R. §§ 4.40, 4.45, 4.59; Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As such, entitlement to a 30 percent rating for the period prior to July 8, 2014, for a left shoulder disability is granted. The Board has considered a total rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, absent any indication or allegation that the Veteran is unemployable as a result of his service-connected left shoulder disability, consideration of TDIU is not warranted. In this case, an October 2020 Muscle Injuries Disability Benefits Questionnaire reflects that the Veteran is currently employed full-time with a desk job. As such, the record does not reasonably raise the issue of TDIU. Id. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.