Citation Nr: 21071314 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-07 596 DATE: November 30, 2021 ORDER A rating in excess of 20 percent for left (minor) shoulder disability is denied. REMANDED Entitlement to service connection for a respiratory disability (other than allergic rhinitis), to include bronchitis and asthma is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT Despite pain, the Veteran's left (minor) shoulder disability was not shown to result in range of motion being functionally limited to midway between side and shoulder level, or worse. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the left (minor) shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1987to July 2007. His military awards and decorations include, in part, the Bronze Star. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Board, in part, remanded the matters on appeal for additional VA examinations and opinions to determine the nature and extent of the Veteran's claimed left shoulder, respiratory (other than allergic rhinitis) and left ankle/foot disabilities. A VA clinician examined the Veteran and provided the requested opinions in August 2021. See VA Ankle and Respiratory, and Shoulder Disability Benefit Questionnaires (DBQs) and opinion. The matters have returned to the Board for further appellate review. By an August 2021 rating action, the RO granted service connection for the following disabilities: (i) left foot hallux valgus, evaluated as noncompensably disabling; (ii) left foot pes planus, evaluated as 30 percent disabling); (iii) obstructive sleep apnea, evaluated as noncompensably disabling; (iv) migraine headaches (evaluated as noncompensably disabling from January 23, 2012 to July 22, 2020, 30 percent disabling from July 23, 2020 to August 17, 2021, and in excess of 50 percent therefrom); and, (v) allergic rhinitis (evaluated as 10 percent disabling). The RO assigned an effective date of January 23, 2012, the date VA received the Veteran's original claim for compensation for these disabilities. This represents a complete grant of his appeal in regard to these claims. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). These issues are no longer before the Board. A rating higher than 20 percent for a left shoulder disability is denied. The Veteran seeks a higher rating in excess of 20 percent for the service-connected left (minor) shoulder disability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, 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. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The rating criteria for evaluating disabilities of the shoulder, including Diagnostic Code 5201, distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. As the record on appeal establishes that the Veteran is right-handed, the criteria for rating disabilities of the minor extremity have been applied. The left shoulder is currently under Diagnostic Code 5201. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under Diagnostic Code 5201, a 20 percent rating is assigned where motion of either arm is limited to the shoulder level. A 20 percent rating is also warranted where motion of the major arm is limited to midway between the side and shoulder level, and a maximum 30 percent rating requires limitation of motion of the minor arm to 25 degrees from the side. Id. In determining whether a Veteran has limitation of motion to shoulder level, it is necessary to consider reports of both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Normal shoulder motion is defined as zero to 180 degrees of forward elevation (flexion), zero to 180 degrees from the side of the body out to the side (abduction), and zero to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I. Shoulder level is at 90 degrees, and exactly midway between the side and shoulder level is at approximately 45 degrees. It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. 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. Here, the amendments to the rating schedule do not have any retroactive application. 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 from February 7, 2021. Here, the new regulations do not specifically change how a shoulder disability is rated. Rather, the revisions were intended to provide more objective markers for each of the ratings. While the regulations in effect at the time the Veteran filed his claim did not include specific range of motion limitations, the revisions were intended to be consistent with VA practice. That is, it has traditionally been assumed that shoulder level is consistent with 90 degrees. The Board finds that the weight of the evidence is against a rating higher than 20 percent for his left shoulder disability. Range of motion measurements contained in VA examinations, conducted in February 2014, September 2019, July 2020, and August 2021 VA examinations show limitation of motion of the left arm in flexion and abduction were limited to, at most, to 80 degrees, respectively, due to pain (August 2021 VA examination). These same examination reports do not disclose limitation of motion of the non-dominant left arm to at least 25 degrees from side to warrant the next higher 30 percent rating. Further, contrary to the Veteran's attorney's September 2021 written argument to VA, the Veteran's complaints of pain and loss of function were recorded and considered by the August 2021 VA examiner. The findings on range of motion testing were based on those complaints. A rating higher than 20 percent for the service-connected left shoulder disability under Code 5201 is therefore not warranted. Further, the Board has considered the Veteran's description of left shoulder symptoms and the reported functional loss associated with those symptoms. Specifically, on VA examinations, conducted in February 2014; September 2019; July 2020; and August 2021. At all examinations, he reported having left shoulder pain. During the August 2021 examination, the Veteran indicated that he had sharp left shoulder pain one to two times a week, notably when he lifted, carried, or raised his arm. The above-cited VA examinations and VA treatment reports associated with the record during the appeal show that even considering the pain with repetitive use, the range of motion of the Veteran's left arm had not shown to be functionally limited to lower than the midway between the side and shoulder level, which is required by a 30 percent or a higher rating. VA examinations in February 2014, and September 2019 show that the Veteran could move his left arm well above the shoulder level. As such, the Board finds that the preponderance of the evidence of record is against a rating in excess of 20 percent based on range of motion of the left shoulder under the pre or post-February 2021 rating criteria. Moreover, the amended diagnostic criteria did not materially change the pre-February 2021 diagnostic criteria. Rather, the amendment simply codified the ranges of limited motion that had previously been derivable from 38 C.F.R. § 4.71a, Plate I. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the Veteran has already received a 20 percent rating for his left shoulder disability, and the evidence does not show that pain, weakness, or other symptoms has effectively functionally limited the range of motion in the Veteran's left shoulder to midway between his side and shoulder level as would be required for the assignment of a 30 percent rating. In so finding, the Board observes that, despite the Veteran's attorney's assertions made in support of his claim, the record shows that the August 2021 VA examiner recorded the Veteran's range of left shoulder motion during a flare-up, as specifically requested by the Board in its Mach 2021 remand directive. See August 2021 VA Shoulder DBQ at page (pg.) 11. Notably, during the appeal period, the Veteran's left shoulder was limited in flexion and abduction, at most, to 80 degrees during a flare-up and with pain at the August 2021 VA examination. Thus, even with complaints of pain during a flare-ups of the left shoulder, the Veteran could move his left arm almost to the side level. As such, a rating in excess of 20 percent is not warranted under 38 C.F.R. §§ 4.40 and 4.45. Other diagnostic codes related to the shoulder and arm were considered, but none were applicable to the Veteran's disability as there was no impairment of the humerus, clavicle or scapula and no showing of ankylosis. For the foregoing reasons, the Veteran's claim for a rating for his service-connected left shoulder disability in excess of 20 percent is denied. REASONS FOR REMAND The Veteran seeks service connection for a respiratory disability (other than allergic rhinitis), claimed as bronchitis and asthma, and left ankle disability. In August 2021, a VA examiner opined, in pertinent part, that the Veteran's left ankle strain and asthma were less likely than not related to his service. Concerning the Veteran's diagnosed asthma, the VA examiner indicated that the Veteran's service treatment records revealed that he had complained of shortness of breath on enlistment examination and on periodic examinations, conducted in 1998, 2000, 2005, and at his 2007 retirement examination. The examiner further maintained that while pulmonary function tests in 2020 and 2021 showed a minimal obstructive defect (FEV < 80%) which warranted a diagnosis of asthma, a nexus cannot be established during service. The VA examiner further opined that there was no evidence of a chronic bronchitis condition, thus, a connection was less likely. The VA examiner did not provide any rationale or medical reasoning for his blanket conclusion that there was no evidence of any chronic bronchitis condition. See August 2021 VA opinion. Regarding the Veteran's left ankle, the examiner reasoned that the Veteran had received treatment in-service for left Achilles sprain after playing basketball in 1997, but that the remainder of his service treatment records were negative for any further ankle complaints. The examiner noted that the Veteran denied having had swollen or painful joints on a 2007 retirement examination, and that VA records show no evidence of further ankle complaints. Thus, according to the examiner, a nexus was not established. No further reasoning was provided. The Board finds that the August 2021 VA examination report is inadequate with respect to the claims for service connection for a respiratory disability (other than allergic rhinitis) claimed as bronchitis and asthma, and left ankle disability, as alleged by the Veteran's attorney in a September 2021 written argument to the Board. Specifically, the VA examiner based the negative nexus opinions exclusively on a lack of evidence of complaints or findings for many years after service without considering the Veteran's lay statements alleging symptoms in service and having had left ankle pain and breathing problems since discharge. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was found inadequate where the examiner did not comment on the appellant's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). On remand, addendum medical opinions should be sought which carefully consider the Veteran's lay statements regarding his continuous nature of his breathing problems and left ankle pain since service. The matters are REMANDED for the following action: Obtain addendum opinions from the appropriate clinicians to address the etiology of the Veteran's respiratory disability (other than allergic rhinitis), currently diagnosed as asthma, and left ankle sprain. If a physical examination is necessary to answer the Board's questions, one should be scheduled. Following a review of the evidence of record, to include the Veteran's lay statements, the clinicians should answer the following questions as it relates to their specific disability: i) Is it at least as likely as not (50 percent probability of greater) that the Veteran's documented in-service left ankle sprain and complaints of having difficulty breathing, as well as in the Veteran's lay statements, were early manifestations of his current left ankle sprain and diagnosed asthma? Why or why not? (Continued on the next page) ii) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a diagnosis of bronchitis that is related to period of military service, notably to include his complaints of difficulty breathing? Why or why not? If a diagnosis of bronchitis cannot be made, the clinician must provide medical reasoning for why this is the case. The clinicians must discuss and consider the Veteran's lay statements regarding the history and the continuity of symptomatology, to include the Veteran's ongoing reports of left ankle pain and having had difficulty breathing since his separation from service. The clinicians are advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the clinician rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.