Citation Nr: 21071034 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-43 347 DATE: November 29, 2021 ORDER Entitlement to a 50 percent rating for right shoulder strain with minimal degenerative joint disease, tendonitis, bursitis, acromioclavicular joint ankylosis of glenohumeral and bicipital tendon tear from February 25, 2015, to December 20, 2017, is granted. FINDING OF FACT From February 25, 2015, to December 20, 2017, the Veteran's right shoulder disability was productive of unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side. CONCLUSION OF LAW The criteria for a 50 percent rating for right shoulder strain with minimal degenerative joint disease, tendonitis, bursitis, acromioclavicular joint ankylosis of glenohumeral and bicipital tendon tear from February 25, 2015, to December 20, 2017, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5200 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to May 1980. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated July 2015 and February 2018 of a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2019 decision, the Board granted a 40 percent rating for the Veteran's right shoulder strain with minimal degenerative joint disease, tendonitis, bursitis, acromioclavicular joint, ankylosis of the glenohumeral joint and bicipital tear (hereinafter right shoulder disability) for the period from February 25, 2015, to December 20, 2017, and a 50 percent rating from December 20, 2017. The Veteran appealed the Board's October 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand remanding the matter of entitlement to a rating in excess of 40 percent for the Veteran's right shoulder disability for the period from February 25, 2015, to December 20, 2017. In March 2021, the Board remanded the matter on appeal to provide an additional examination. The case has since returned to the Board for the purpose of appellate disposition. 1. Increased rating for right shoulder disability from February 25, 2015, to December 20, 2017 Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran's right shoulder disability is rated as 40 percent disabling pursuant to Diagnostic Code 5024-5200. The record reflects that the Veteran is right-handed, and thus the criteria for the major arm apply. Under Diagnostic Code 5200, the major shoulder is rated as follows: a 40 percent rating is warranted for intermediate ankylosis of the scapulohumeral articulation between favorable and unfavorable. A 50 percent rating is warranted where there is unfavorable ankylosis with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5200. Under Diagnostic Code 5201, a 20 percent rating is assigned for limitation of the arm to shoulder level for the major or minor arm, or limitation of motion of the minor arm to midway between the side and shoulder level. A 30 percent rating is assigned for limitation of motion of the major arm to midway between the side and shoulder level. A 40 percent rating is assigned for limitation of motion of the major arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, including Diagnostic Code 5201. The revised criteria provide additional description of the rating criteria, including that "at shoulder level" means flexion and/or abduction limited to 90 degrees, "midway between the side and shoulder level" means flexion and/or abduction limited to 45 degrees, "to 25 degrees from side" is flexion and/or abduction limited to 25 degrees from side. However, the rating criteria was not otherwise changed. In addition, Diagnostic Code 5200 was not revised. Where a diagnostic code does not explicitly contemplate the ameliorative effects of medication on a disability, the Board must evaluate the disability without regard to the ameliorative effects of the medication. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) ("[I]f [a diagnostic code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication."). On VA examination in May 2015, the Veteran reported severe pain and limitation in range of motion of the right shoulder. He noted that he took multiple medications and that his pain level was the same with limited motion. He reported flare-ups of pain 4-8 times per day lasting 1 to 2 hours at a time. Flexion and abduction were to 90 degrees, and external and internal rotation were to 45 degrees. Pain was noted on examination and there was tenderness over the entire shoulder, acromioclavicular joint, and trapezius muscle. Repetitive range of motion testing revealed no change in range of motion. He had less movement than normal and disturbance of locomotion but no other contributing factors of disability. The examiner was unable to provide estimated range of motion findings on repeated use over time or during flare-ups, noting that the exam was not being conducted while either state was present. Muscle strength testing was 3/5 for forward flexion and abduction. The Veteran did not have muscle atrophy. There was ankylosis in abduction up to 60 degrees (can reach mouth and head), or favorable ankylosis. Rotator cuff testing revealed positive findings on Hawkins' impingement, empty-can, external rotation, and subscapularis testing. Shoulder instability, dislocation, or labral pathology was not suspected. There was tenderness on palpation of the acromioclavicular joint and cross body abduction test was positive. There was no impairment of the humerus present. The examiner diagnosed shoulder impingement, bicipital tendonitis, bicipital tendon tear, rotator cuff tendonitis, rotator cuff tear, bursitis, osteoarthritis, ankylosis of the glenohumeral joint, and acromioclavicular joint separation, and noted that the Veteran was out of work for the previous 2 years due to right shoulder pain and inability to lift or raise his arm about the shoulder. On his August 2015 notice of disagreement, the Veteran reported that he had to take all of his pain medication prior to the examination and that his condition was significantly worse without medication. He noted difficulty in picking up of a glass of water or food without medication. A 2016 VA treatment report reflects shoulder flexion to 90 degrees with pain at 60 degrees, extension to 30-40 degrees, abduction to 55 degrees, and external rotation to 38 degrees. Trace findings were indicated on muscle strength testing. It was noted that the Veteran had very limited range of motion and had made accommodations in his activities of daily living to accommodate for the lack of range of motion and strength. On VA examination in July 2017, the Veteran endorsed right shoulder pain and noted that flare-ups occurred, which he described as a burning sensation from shoulder to elbow. Functional impairment included difficulty lifting, stretching, pushing, holding, and raising his arm. Range of motion testing revealed flexion to 40 degrees, abduction to 50 degrees, external rotation to 20 degrees, and internal rotation to 40 degrees. Pain was noted on examination and caused functional loss. There was mild diffuse tenderness on palpation of the shoulder. There was no change in range of motion upon repetition. The examiner indicated that he was unable to describe functional loss in terms of range of motion upon repeated use over time or during flare-up. Muscle strength testing was 4/5 on forward flexion and abduction. There was no ankylosis of the scapulohumeral present. Rotator cuff conditions testing yielded positive results. Acromioclavicular joint ankylosis was indicated. The examiner diagnosed shoulder strain, bicipital tendon tear, degenerative arthritis, acromioclavicular joint ankylosis of the glenohumeral, shoulder bursitis, and tendonitis, and indicated that the disability caused reduced capacity for tasks that required heavy lifting singularly, or lifting moderate weights repeatedly. He also had difficulty with overhead arm movements, pushing, and pulling. A December 2017 VA examination report reflects that the Veteran had aching pain and stiffness to the right shoulder, along with an inability to use the right shoulder. He needed assistance with dressing and was non-weight bearing. Muscle atrophy was present. Range of motion testing revealed flexion and abduction to 25 degrees, and external and internal rotation to 20 degrees. The examiner also noted ankylosis in abduction at 25 degrees. In March 2021, the Board remanded the case to afford the Veteran an additional examination and to retroactively estimate and loss of function as a result of flare-ups and repeated use for the period from February 25, 2015, to December 20, 2017. On VA examination in 2021, the examiner noted that flexion was to 70 degrees, abduction was to 55 degrees, internal rotation was to 90 degrees, and external rotation. The examiner indicated that there was no additional estimate range of motion loss on flare-up or repetitive use over time. No ankylosis was present. As for retrospective findings, the examiner noted that the evidence of record from 2015 to 2017 was reviewed. The examiner indicated that at the time of current examination, the Veteran had moderate severity of the right shoulder disability based on the limited motion, pain level, and functionality of the right shoulder. He noted that, unfortunately, the prior VA exams were a small and limited snapshot at a given time for which it was difficult to draw any meaningful conclusion as to severity of disability. The examiner further indicated that the disability could wax and wane with any given day and activity. However, he noted that the Veteran had very limited motion and consistent complaints of pain consistent with today's exam. Based on this, this examiner opined that the right shoulder condition was moderately severe from February 2015 to December 2017. Based upon the foregoing, the Board finds that the aforementioned evidence supports entitlement to a 50 percent evaluation throughout the appeal period. In reaching this determination, the Board notes that the evidence has varied, with only the December 2017 VA examination report documenting unfavorable ankylosis in abduction limited to 25 degrees from the side. However, the Board has considered the Veteran's consistent reports as to the severity of his symptoms. In addition, the Veteran indicated that that his symptoms were worse without medication, and the Board is not permitted to consider the ameliorative effects of medication. The examiners during this time frame also were unable to provide estimate range of motion findings on flare-up or on repeated use over time, and the 2021 examiner also indicated that he was unable to provide such an estimation in degree. In light of the foregoing, the Board resolves reasonable doubt in the Veteran's favor and finds that the December 2017 findings that supported a 50 percent rating were present prior to the examination and throughout the appeal period. Accordingly, a 50 percent rating is warranted from February 25, 2015, to December 20, 2017. The Board notes that a 50 percent rating is the maximum rating allowable under Diagnostic Code 5200. In addition, neither the former nor revised criteria of Diagnostic Code 5201 provide for a rating in excess of 40 percent. The Board has also considered the other Diagnostic Codes pertaining to the arm/shoulder. However, as impairment of the humerus, clavicle, or scapula (notable dislocation, nonunion, or malunion) are not indicated, rating is not warranted under Diagnostic Codes 5202-03. Although the record also indicates muscle disability, as the ratings pertaining to the shoulder girdle and arm muscles contemplate symptoms already considered in the assigned ratings, such as elevation, abduction, and rotation of the arm, the Board finds that a separate rating cannot be assigned without violating the rule against pyramiding. See 38 C.F.R. § 4.14 (noting that the evaluation of the same disability or same manifestation under different diagnoses are to be avoided). The Board accordingly finds that a 50 percent rating, but no higher, for the Veteran's right shoulder disability from February 25, 2015, to December 20, 2017, is warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.