Citation Nr: 21070235 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-42 794A DATE: November 23, 2021 ORDER Entitlement to an initial evaluation in excess of 20 percent for left shoulder tendinopathy and arthritis status-post clavicle resection is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's left shoulder tendinopathy and arthritis status-post clavicle resection was productive of painful motion but was not limited to midway between side and shoulder level of the minor arm, productive of actual or functional limitation of motion of the minor arm to 25 degrees from his side or malunion, recurrent dislocation, fibrous union, nonunion, or loss of head of the minor humerus. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for left shoulder tendinopathy and arthritis status-post clavicle resection have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1977 to September 1986, from September 2000 to July 2005, from June 2008 to September 2008, and from August 2010 to July 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision. In that decision, the agency of original jurisdiction (AOJ) granted service connection for left shoulder tendinopathy and arthritis status post clavicle resection and assigned a 10 percent evaluation effective July 16, 2011. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2019. A transcript of the proceeding as been associated with the claims file. The Board remanded the case for further development in October 2019 and September 2020. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in an April 2020 rating decision, the AOJ increased the evaluation for left shoulder tendinopathy and arthritis status post clavicle resection to 20 percent effective from July 16, 2011. Applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remained on appeal. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by 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. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Even when the background factors listed in 38 C.F.R. §§ 4.40, 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which the 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."). The Veteran's service-connected left shoulder disability is currently assigned a 20 percent evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5201. During the pendency of this appeal, VA issued revised schedular criteria for rating musculoskeletal disabilities, including some of the diagnostic codes for rating shoulder disabilities under 38 C.F.R. § 4.71a, which became effective February 7, 2021. However, consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to February 7, 2021, neither the RO nor the Board could apply the revised rating schedule. Where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must consider the claims pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Veteran is right-handed; therefore, the rating criteria for the minor arm are applicable. Prior to the regulatory change, Diagnostic Code 5010 provides that arthritis, due to trauma and substantiated by x-ray findings, is rated as degenerative arthritis. See 38 C.F.R. § 4.71a. Degenerative arthritis is rated under Diagnostic Code 5003, which provides that degenerative arthritis, established by x-ray findings, is rated according to limitation of motion for the joint or joints involved. As of February 7, 2021, under the amended criteria, Diagnostic Code 5010 provides that post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. See 38 C.F.R. § 4.71a. Under the version of Diagnostic Code 5201 to the February 7, 2021, Diagnostic Code 5201, a 20 percent evaluation is assigned for limitation of motion of the minor arm at shoulder level or limitation of motion of the minor arm midway between the side and shoulder level. A 30 percent evaluation is warranted with limitation of motion of the minor arm to 25 degrees from the side. Under the amended version of Diagnostic Code 5201, a 20 percent evaluation is assigned for limitation of the minor arm at shoulder level (flexion and/or abduction limited to 90 degrees). A 20 percent evaluation is also contemplated for limitation of motion of the minor arm to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A 30 percent evaluation is warranted for when flexion and/or abduction of the minor arm is limited to 25 degrees from the side. For VA compensation purposes, normal range of motion for the shoulder is 180 degrees of forward flexion, 180 degrees of abduction, and 90 degrees of external and internal rotation. See 38 C.F.R. § 4.71, Plate I. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased rating for his service-connected left shoulder disability during the period on appeal. Medical records from August 2011 demonstrate that the Veteran was experiencing soreness and discomfort in his left shoulder and that he was attending physical therapy for his shoulder condition with positive results. Throughout the period on appeal, the Veteran is not shown to have motion limited to midway between the side and shoulder level or flexion and/or abduction limited to 25 degrees from the side. In this regard, a July 2012 VA examination revealed left shoulder flexion to 140 degrees and abduction to 160 degrees. After repetitive use testing, he maintained left shoulder flexion to 140 degrees and abduction to 160 degrees. During a November 2014 VA examination, the Veteran had left shoulder flexion to 130 degrees and abduction to 110 degrees. After repetitive use testing, he maintained left shoulder flexion to 130 degrees and abduction to 100 degrees. The examiner noted that any limitation of range of motion could not be estimated for flare-ups, but described the Veteran's flare-ups as resulting in a loss of function for lifting, carrying, or all motions requiring the arm to be raised above the level of the shoulder. During a December 2019 examination, the Veteran also had flexion to 90 degrees and abduction to 90 degrees. He was able to perform repetitive use testing with at least three repetitions, and there was no additional functional loss or range of motion after three repetitions. During flare-ups, the Veteran's flexion was limited to 90 degrees and abduction was limited to 80 degrees. During the June 2019 hearing, the Veteran stated that he has daily shoulder pain and has difficulty lifting his left shoulder. He testified that, while he can lift his shoulder above shoulder level, there is pain associated with doing so. The Veteran also testified that his left shoulder is weak and that he has difficulty carrying heavy objects with his left side. He further stated that his left shoulder condition prevents him from being able to lift weights or engage in physical activity. During a January 2021 VA examination, the Veteran had left shoulder flexion to 90 degrees and abduction to 80 degrees. He was able to perform repetitive use testing with at least three repetitions, and there was no additional functional loss or range of motion. The examiner noted that pain, fatigue, and lack of endurance significantly limits functional ability with repeated use over a period of time, but noted that he still had flexion to 90 degrees and abduction to 80 degrees. During flare-ups, the Veteran had 80 degrees of left shoulder flexion and 70 degrees of abduction. Upon passive range of motion testing, the Veteran had left shoulder flexion to 85 degrees and abduction to 80 degrees. The Veteran's range of motion on weight-bearing was recorded as flexion to 80 degrees and abduction to 75 degrees. The examiner noted that there is evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. The examiner indicated that passive range of motion and weightbearing range of motion cannot be estimated for the December 2019 VA examination because accurate measurements must be obtained with hands on manipulation at the time of the evaluation. Further, the examiner noted that active, passive, weightbearing, and non-weightbearing measurements cannot be obtained for the July 2012 or November 2014 VA examinations for the same reason. For these reasons, the Board finds that the Veteran is not entitled to an increased rating under Diagnostic Code 5201 throughout the appeal period. The Board has also considered whether an increased evaluation is warranted under other relevant diagnostic codes, including the diagnostic codes governing ankylosis of scapulohumeral articulation, other impairment of the humerus, and impairment of the scapula or clavicle. However, the Board finds that the criteria for higher or separate ratings under these provisions are not met. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. In this regard, the July 2012, November 2014, December 2019, and January 2021 VA examiners specifically stated that the Veteran did not have ankylosis of the left shoulder, and the aforementioned range of motion findings do not show or suggest that his left shoulder is fixed or immobile. The Veteran has also not been shown to have impairment of the humerus. Indeed, the July 2012, November 2014, December 2019, and January 2021 VA examiners found that the Veteran did not have impairment of the humerus, to include loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, and malunion of the humerus with moderate or marked deformity. Moreover, a 20 percent evaluation is the maximum schedular evaluation under Diagnostic Code 5203 for impairment of the clavicle or scapula. Therefore, an increased evaluation cannot be granted under Diagnostic Code 5203. Thus, the Board finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Codes 5200, 5202, or 5203. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the findings in DeLuca. However, an increased evaluation for the left shoulder disability is not warranted on the basis of functional loss due to pain or weakness in this case. The Veteran's left shoulder symptoms are supported by pathology consistent with the assigned 20 percent rating and no higher. In this regard, the Board observes that the Veteran has complained of pain and weakness in his left shoulder. However, even with such symptoms, repetitive motion, and flare-ups, he has still maintained a range of motion greater than midway between his side and shoulder level or 25 degrees from his side during all range of motion testing. As such, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to a degree that would warrant an increased evaluation beyond the 20 percent evaluation already assigned. Accordingly, the Board, concludes that increased or separate evaluations are not warranted for the Veteran's service-connected left shoulder disability under DeLuca. Based on the foregoing, the Board finds that the weight of the evidence is against an increased rating for the Veteran's service-connected left shoulder disability on or after July 16, 2011. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. Gilbert, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.