Citation Nr: 21068817 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 16-38 227 DATE: November 15, 2021 ORDER Subject to the laws and regulations governing the award of monetary benefits, for the entirety of the appeal period, entitlement to a 30 percent rating, but no higher, for degenerative arthritis of the left shoulder (left shoulder disorder) is granted. FINDING OF FACT For the entirety of the appeal period, the Veteran's left shoulder disorder has been manifested by limitation of motion of the minor upper extremity to 25 degrees from the side with no ankylosis or impairment of the humerus, clavicle, or scapula. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating, but no higher, for degenerative arthritis of the left shoulder have been met for the entirety of the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.3, 4.4, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5003-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from July 1979 to November 1979 and on active duty from June 2006 to June 2008. In October 2018, the Board of Veterans' Appeals (Board) remanded this issue to accord the Agency of Original Jurisdiction (AOJ) an opportunity to issue a Statement of the Case (SOC) in compliance with Manlincon v. West, 12 Vet. App.238 (1999). In June 2021, the Board remanded this claim for further evidentiary development. In August 2021, the AOJ granted a 30 percent rating for the Veteran's left shoulder disability, from July 20, 2021. Because the maximum benefit was not granted, the issue of entitlement to a higher evaluation remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). During the pendency of the appeal, the AOJ granted a TDIU. See June 2020 Rating Decision. The Veteran filed a VA Form 10182 regarding the issue of entitlement to an earlier effective date for this issue, and the Board informed her that this issue was placed on the AMA Evidence Submission Lane Docket. See October 2021 VA Form 10182; October 2021 BVA Letter. While the Board could assume jurisdiction of the TDIU rating for the earlier period in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), as she chose to appeal the issue in the AMA system, the Board declines to do so for this Legacy appeal. Entitlement to a rating in excess of 20 percent prior to July 20, 2021 for degenerative arthritis of the left shoulder Entitlement to a rating in excess of 30 percent from July 20, 2021 for degenerative arthritis of the left shoulder Preliminarily, in March 2017, the AOJ proposed to reduce the Veteran's left shoulder disability rating to 0 percent. See March 2017 Rating Decision Narrative. In a May 2017 rating decision, the AOJ implemented the rating reduction, effective from August 1, 2017. The Veteran appealed this reduction. In February 2020, the AOJ found clear and unmistakable error (CUE) in the rating reduction and restored her 20 percent rating from August 1, 2017. See February 2020 Rating Decision Narrative. As mentioned previously herein, in August 2021, the AOJ increased to the rating to 30 percent from July 20, 2021. The Veteran's left shoulder disability is evaluated under Diagnostic Codes (DC) 5003-5201. DC 5003 provides ratings for degenerative arthritis. Degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. The amendments made to the rating criteria for musculoskeletal system, effective from February 9, 2021, specifies that DC 5003 evaluates arthritis other than post-traumatic, which is evaluated by DC 5010. DC 5201 evaluates limitation of motion of the arm. The criteria provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder and 20 percent for the minor shoulder. Limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. 38 C.F.R. § 4.71a. The February 2021 amendments to the rating criteria specifies that midway between side and shoulder level is flexion and/or abduction limited to 45 degrees and that at shoulder level is flexion and/or abduction limited to 90 degrees. Turning now to the relevant evidence of the record, at the May 2014 VA examination, the Veteran reported that, since her injury in service, her condition has worsened. She reported experiencing flare-ups, describing them as having impact on performing activities of daily hygiene. The Veteran explained that she could not lift her arm during flare-ups. She shared that the pain was so bad that she could not sleep, having to take pain and sleep medication. Flexion was 100 degrees (with pain noted at 85 degrees), and abduction was 65 degrees (with pain noted at 60 degrees). After repetitive use testing, flexion was further limited to 85 degrees. Less movement than normal, weakened movement, incoordination, and pain on movement contributed to her disability. Pain on palpation or localized tenderness was noted. Guarding was present. Muscle strength was reduced. She did not have ankylosis. She tested positive for the specific tests for rotator cuff conditions. The examiner remarked that the Veteran experienced weakness in her shoulders and intense pain while trying to perform range of motion testing. There was no history of recurrent dislocation. Functional impact was described as difficulty with lifting anything shoulder height, and weightbearing, over five pounds. A June 2014 Primary Care Note indicates that the Veteran experienced pain with abduction or forward flexion beyond 90 degrees of her left shoulder. In August 2014, she reported that her left shoulder symptoms were aggravated with overhead activities, combing her hair, reaching for her back packet, and lying on her side. See August 2016 VA Medical Treatment Records (CAPRI). Another VA Examination was conducted in September 2014, but there were not any significant changes of note since what was recorded on the prior VA examination report and the VA treatment records. At the February 2020 VA examination, the Veteran reported that, since the last examination, her left shoulder condition remained the same. She reported experiencing functional loss due to pain. Flexion was 110 degrees and abduction was 100 degrees. The pain noted on examination did not cause functional loss. Pain was noted in abduction. There was no evidence of pain with weightbearing or non-weight bearing. There was pain on passive range of motion. No additional loss of range of motion noted after repetitive use testing. She was not being examined immediately after repetitive use over time. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. There was no rotator cuff condition suspected. At the July 2021 VA Examination, the Veteran reported experiencing intermittent left shoulder pain, described as "toothache like pain." The cream she used to alleviate the pain was minimally effective. She reported flareups, described as being brought on by the overuse of her left shoulder. When she had flare-ups, she had zero motion of her shoulder. This occurred four times a week, lasting for up to four minutes. Flexion was 136 degrees and abduction were 115 degrees. Pain was noted in all planes. Passive range of motion values were noted as follows: flexion was 146 degrees and abduction was 145 degrees. Pain was noted with weight-bearing and passive range of motion. There was no additional functional loss after repetitive use testing. She was being examined immediately after repetitive use over time. Pain caused functional loss. Estimated range of motion after flare-ups was 0 degrees for both flexion and abduction. No muscle atrophy or ankylosis was noted. Rotator cuff condition was suspected. No shoulder instability was present. After a thorough consideration of the evidence of the record, the Board finds that, for the entire period on appeal, the Veteran's left shoulder more nearly approximates limitation of motion to 25 degrees from side. At the May 2014 VA examination, she reported that flare-ups kept her from lifting her arm and performing activities involving daily hygiene. Contributing factors included less movement than normal, weakened movement, and incoordination. She described difficulty with weight bearing anything over five pounds. She asserted that, throughout the appeal period, the condition remained the same. Therefore, the Board concludes that, for the entirety of the appeal period (including prior to July 20, 2021), the Veteran is entitled to a 30 percent rating for her left shoulder disability. As this arm is her minor extremity, 30 percent is the maximum rating allowed under DC 5201. In reaching this decision, the Board has considered whether the Veteran is entitled to separate, or higher, ratings under other diagnostic codes evaluating the shoulder and arm. In this current matter, the medical evidence does not show that the Veteran has any humerus impairments (DC 5202), ankylosis (DC 5200), or clavicle/scapula impairments (DC 5203) of her left shoulder joint. Although a rotator cuff condition was suspected as she tested positive on some testing, there has been no history of mechanical symptoms (clicking, catching) or recurrent dislocation. Assignment of a rating under those diagnostic codes is not warranted. The Board has also considered the Veteran's assertion regarding not being able to sleep due to the pain from her left shoulder. Pain, and its severity level, is a symptom contemplated by the diagnostic codes evaluating limitation of motion of shoulder, as noted on the examinations. Her difficulties sleeping have been attributed to the severity level of his pain. Therefore, any interferences caused by her shoulder pain is contemplated by the assigned diagnostic code and does not exhibit an exceptional disability picture. As such, no referral for extraschedular consideration is warranted. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In summation, for the entire period on appeal, the Veteran is entitled to a 30 percent rating, but no higher, for her service-connected left shoulder disability. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.