Citation Nr: 21074707 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-17 277 DATE: December 16, 2021 ORDER A rating in excess of 20 percent prior to November 7, 2019 for right shoulder tendonitis is denied. A rating in excess of 40 percent from November 7, 2019 to May 17, 2020 for right shoulder tendonitis is denied. REMANDED Entitlement to a rating in excess of 40 percent since July 1, 2021 for right shoulder tendonitis (status post replacement). FINDINGS OF FACT 1. From October 9, 2013 to November 6, 2019, the Veteran's service-connected right shoulder tendonitis has not been manifested by at least motion limited to midway between side and shoulder level (under the old or new rating criteria), ankylosis, or impairment of the humerus. 2. From November 7, 2019 to May 17, 2020, the Veteran's service-connected right shoulder tendonitis is assigned at 40 percent, the maximum rating authorized, under Diagnostic Code 5201. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent prior to November 7, 2019 for right shoulder tendonitis have not been met. 38 U.S.C. §§ 1155, 5110(a) (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201 (2020). 2. There is no legal basis for the assignment of a schedular rating in excess of 40 percent from November 7, 2019 to May 17, 2020 for right shoulder tendonitis. 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1982 to June 1986. In February 2019, the Board remanded the issue of entitlement to a rating in excess of 20 percent for right shoulder tendonitis. There was substantial compliance with these remand directives for the issue on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, VA treatment records dated from September 2017 to March 2019 and from April 2018 to April 2020 were obtained and associated with the record. The Veteran was provided a VA Disability Benefits Questionnaire (DBQ) examination for shoulder and arm conditions in November 2019, which is adequate as it was based on a review of the history, examination, and sufficient information was provided to allow the Board to render an informed determination. The issue was also readjudicated in an April 2020 supplemental statement of the case (SSOC). The case has been returned to the Board for appellate review. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issue discussed below on the merits during the appeal period prior to November 7, 2019. 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). Increased Ratings 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. § 4.1. 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 claimant's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected right shoulder tendonitis in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Procedural History In a January 1987 VA rating decision, service connection for right shoulder traumatic tendonitis with residual adhesive capsulitis and decreased range of motion was granted because the disability was deemed to be directly related to a motor vehicle accident during active military service. The Veteran was assigned a 20 percent disability rating effective for the entire rating period from June 26, 1986 (the date following separation from active service). See 38 C.F.R. § 4.71a, Diagnostic Code 5099-5201. On October 9, 2014, the Veteran's request for a higher rating for the issue on appeal was obtained and associated with the record. In the September 2017 VA rating decision, the AOJ granted service connection for right shoulder degenerative arthritis, to include osteoarthritis of the glenohumeral joint, effective from March 14, 2017 and included in the currently assigned 20 percent disability rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. In the April 2020 VA rating decision, the AOJ assigned the service-connected right shoulder tendonitis a 40 percent disability rating effective from November 7, 2019. Id. In the June 2020 VA rating decision, the AOJ assigned the service-connected right shoulder tendonitis a temporary evaluation of 100 percent effective from May 18, 2020 to August 31, 2020 and a 40 percent disability rating thereafter. Id. In a December 2020 VA rating decision, the AOJ determined there was clear and unmistakable error (CUE) in the prior decision and assigned the temporary evaluation of 100 percent effective from May 18, 2020 to June 30, 2021 and a 40 percent disability rating thereafter. See 38 C.F.R. § 4.71a, Diagnostic Code 5051 (shoulder replacement). Since the 20 and 40 percent disability ratings are not the maximum ratings available during the applicable appeal periods, the issue has been returned to the Board and characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). The Board considers below on the merits whether a rating in excess of 20 percent prior to November 7, 2019 under Diagnostic Code 5003-5201 and whether a rating in excess of 40 percent from November 7, 2019 to May 17, 2020 under Diagnostic Code 5003-5201 for right shoulder tendonitis is warranted in this case. See 38 C.F.R. § 4.71a. Diagnostic Criteria During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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. Id. Review of the portion of the rating schedule that addresses the musculoskeletal system revised effective February 7, 2021 shows that Diagnostic Codes 5003 and 5201 were changed. As a result, the Board will consider the Veteran's claim during the appeal periods from October 9, 2014 to November 6, 2019 and from November 7, 2019 to May 17, 2020 under Diagnostic Codes 5003 and 5201 pursuant to the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. Again, the criteria that is more favorable to the Veteran will be applied. Review of the portion of the rating schedule that addresses the musculoskeletal system revised effective February 7, 2021 also shows that Diagnostic Code 5051 was not changed. As a result, the Board will consider the Veteran's claim during the appeal period since July 1, 2021 under Diagnostic Code 5051 pursuant to the existing criteria. Diagnostic Code 5003 Since ratings in excess of 20 percent and 40 percent are not available under Diagnostic Code 5003, analysis under this rating criteria is not relevant and will not be discussed further. Diagnostic Code 5201 In this case, the January 2015 and October 2016 VA DBQ examination reports for shoulder and arm conditions document the Veteran is right hand dominant, thus the service-connected right shoulder tendonitis is the major extremity. Prior to the regulatory change, Diagnostic Code 5201 provides criteria for limitation of motion of the arm. A minimum 20 percent evaluation is warranted for the major arm when its motion is limited to the shoulder level. 38 C.F.R. § 4.71a. A 30 percent evaluation is warranted for the major arm when its motion is limited to midway between side and shoulder level. Id. A 40 percent evaluation, the maximum available, is warranted for the major arm when its motion is limited to 25 degrees from the side. Id. As of February 7, 2021, under the amended criteria, Diagnostic Code 5201 provides criteria for limitation of motion of the arm. A minimum 20 percent evaluation is warranted for the major arm when its motion is limited to the shoulder level. 38 C.F.R. § 4.71a. A 30 percent evaluation is warranted for the major arm when its motion is limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). Id. A 40 percent evaluation, the maximum available, is warranted for the major arm when flexion and/or abduction is limited to 25 degrees from the side. Id. For VA compensation purposes, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. 1. Entitlement to a rating in excess of 20 percent prior to November 7, 2019 for right shoulder tendonitis The Veteran's service-connected right shoulder tendonitis is rated at 20 percent under Diagnostic Code 5003-5201 during the appeal period from October 9, 2014 (date of claim) to November 6, 2019. See 38 C.F.R. § 4.71a. After review of the evidence for symptomatology of the Veteran's right shoulder disability during the rating period from October 9, 2013 (one year prior to the date of claim) to November 6, 2019, the Board finds that the Veteran's service-connected right shoulder tendonitis was not manifested by at least motion limited to midway between side and shoulder level. At the VA DBQ examination for shoulder and arm conditions in January 2015, the Veteran reported increasing exacerbation of right shoulder pain since military service, impairment of strength, numbness, and difficulty grasping and holding objects with the right upper extremity, daily moderate flare-ups, and limited ability to perform activities throughout the day at least partially contributable to range of motion impairment. Upon clinical evaluation of the right shoulder, he demonstrated localized tenderness or pain on palpation of the joint, and active painful flexion to 120 degrees and abduction to 110 degrees. He also demonstrated difficulty with activities of daily living (i.e., removing shirt for examination), less movement than normal, and weakened movement noted by the VA examiner as secondary problems with activities of daily living (i.e., able to perform own pace, without assistance, with impairment). There were no findings of pain with weight bearing, crepitus, use of an assistive device, or additional functional loss or range of motion after three repetitions, with repeated use over a period of time, or with flare-ups. The examination occurred immediately after repeated use over time. The VA examiner explained why he was unable to opine without speculation as to whether there would be a change in range of motion during flare-ups because the examiner did not personally assess or witness a flare-up with examination and repeated joint assessment. The VA examiner also noted the examination neither supports nor contradicts the Veteran's statements describing functional loss during flare-ups, and confirmed the current diagnosis of traumatic tendonitis, residual adhesive capsulitis, of the right shoulder. At the VA DBQ examination for shoulder and arm conditions in October 2016, the Veteran reported his right shoulder has hurt more in the past couple of years, moving the right arm too much is more of a problem, current symptoms of constant dull ach and intermittent sharp pains aggravated by overhead activity, and currently receives treatment (steroid injections once to twice a year, physical therapy, medicines, and local modalities). Upon clinical evaluation of the right shoulder, he demonstrated transient tenderness and active painful flexion to 110 degrees and abduction to 95 degrees. There were no findings of crepitus, use of an assistive device, or additional functional loss or range of motion after three repetitions, and the VA examiner confirmed the current diagnosis of status post right shoulder injury in service, traumatic tendonitis, with residual adhesive capsulitis. The examination occurred immediately after repeated use over time. Additionally, review of VA treatment records dated during the appeal period shows ongoing reports and treatment for right shoulder pain, including injections, since 2014. In fact, while an April 2018 VA treatment record documented pain on movement right shoulder, such assessment was not documented in terms of degrees for flexion and abduction. Nevertheless, review of these records is silent for any clinical findings or worsening symptoms of the Veteran's right shoulder disability to warrant a higher rating than the currently assigned 20 percent evaluation. The Board finds that such symptomatology, as discussed above, is contemplated in the currently assigned 20 percent disability rating during the appeal period. In fact, while the Veteran reported flare-ups, pain, and difficulty performing activities of daily living due to his right shoulder disability, his range of motion findings of the right shoulder were during the appeal period, at worst, to 95 degrees abduction, which is contemplated in the currently assigned 20 percent disability rating. To meet the next-higher 30 percent criteria as the major arm, motion limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) would need to have been shown. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which 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."). After a review of the evidence discussed above, the Board finds that the functional equivalent of motion limited to midway between side and shoulder level is not shown at any time during the appeal period. Such findings were not shown, even when considering the Veteran's reported symptomatology for the service-connected right shoulder disability, including limited motion, at worst, to 95 degrees abduction after active painful motion in 2016 as noted in the VA examination report. Moreover, the currently assigned 20 percent disability rating was continued for such painful motion in the March 2017 statement of the case (SOC), September 2017 VA rating decision, and September 2017 SSOC. The Veteran's reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 20 for the service-connected right shoulder disability at any time during the appeal under 38 C.F.R. §§ 4.40, 4.45, and 4.59 and the holdings in DeLuca and Mitchell. Diagnostic Code 5200 provides ratings higher than 20 for ankylosis of the major arm. See 38 C.F.R. § 4.71a. Ankylosis is the complete immobility of a joint in a fixed position, either favorable or unfavorable. Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint"). Review of the evidentiary record in this case does not indicate the service-connected right shoulder tendonitis was manifested by or demonstrated the functional equivalent of ankylosis to warrant a rating in excess of 20 percent at any time during the appeal period. In fact, while the VA examiner in January 2015 noted the Veteran had less movement than normal due to ankylosis of the right shoulder, the January 2015 and October 2016 VA DBQ examination reports document active range of motion findings of the Veteran's right shoulder and both VA examiners specifically marked that the Veteran did not have ankylosis of the right shoulder. Diagnostic Code 5202 also provides ratings higher than 20 percent for impairment of the humerus for the major arm under both the old and new criteria. See 38 C.F.R. § 4.71a. Review of the evidentiary record in this case does not indicate the service-connected right shoulder tendonitis was manifested by or demonstrated the functional equivalent of impairment of the humerus to warrant a rating in excess of 20 percent at any time during the appeal period. In fact, the January 2015 and October 2016 VA examiners specifically marked no for any impairment of the Veteran's right humerus following the clinical evaluation. The Board has considered other potentially applicable Diagnostic Codes to warrant a rating higher than the currently assigned 20 percent evaluation, as discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In this case, the evidence does not reflect that there are any other musculoskeletal disorders or muscle injuries of the shoulder that the Veteran's right shoulder tendonitis is more properly rated under another Diagnostic Code. Accordingly, a higher rating under alternate Diagnostic Codes is not warranted. The Board considered the Veteran's reported history of symptomatology related to the service-connected right shoulder tendonitis, including pain, flare-ups, limited range of motion, tenderness, and difficulty with activities of daily living. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for a rating higher than the currently assigned 20 percent have been met at any time during the appeal period prior to November 7, 2019. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, competent evidence concerning the nature and extent of the Veteran's disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's subjective reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board recognizes that the VA examiners did not comply with Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017), when offering opinions regarding the Veteran's impairment during flare-ups or after repeated use over time. As to flare-ups, the Veteran reported them at his January 2015 VA examination and denied them at his October 2016 VA examination. Specifically, in January 2015 he reported daily flare-up two to six times per day. By October 2016, his symptoms had worsened but he no longer experienced flare-ups. Because flare-ups were reported to be so frequent in January 2015 and because no other evidence indicating improvement of symptoms from January 2015 to October 2016, the Board finds that the evidence indicates that the flare-ups reported in January 2015 are the equivalent of the worsened baseline symptoms of October 2016, at which time the Veteran no longer experienced flares. Remand for an estimation of functional impairment during flare-ups in January 2015 is therefore not required. As to repeated use over time, both examinations were conducted immediately after repeated use over time. Objective evidence under such circumstances is of record, so remand for an estimation of impairment is therefore not necessary. Lastly, the Board also considered the possibility of staged ratings and finds that the proper rating for right shoulder tendonitis has been in effect for the appropriate appeal period prior to November 7, 2019. Accordingly, staged ratings are inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board finds that a rating in excess of 20 percent for the service-connected right shoulder tendonitis is not warranted in this case during the appeal period prior to November 7, 2019. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. 2. Entitlement to a rating in excess of 40 percent from November 7, 2019 to May 17, 2020 for right shoulder tendonitis The Veteran's service-connected right shoulder tendonitis is rated at 40 percent under Diagnostic Code 5003-5201 during the appeal period from November 7, 2019 to May 17, 2020. See 38 C.F.R. § 4.71a. Since the Veteran's service-connected right shoulder tendonitis has been assigned the maximum schedular rating available for the limitation of motion of the major extremity during the appeal period from November 7, 2019 to May 17, 2020, the Board finds there is no legal basis upon which to award a higher schedular evaluation for the right shoulder tendonitis under the old or new rating criteria for limitation of motion. As such, entitlement to a rating in excess of 40 percent from November 7, 2019 to May 17, 2020 for right shoulder tendonitis is not warranted on a schedular basis under Diagnostic Code 5201. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Next, Diagnostic Code 5200 provides a higher rating of 50 percent, the maximum available, for ankylosis of the major arm and Diagnostic Code 5202 provides higher ratings of 50, 60, and 80 percent, the maximum available, for impairment of the humerus of the major arm. Review of the evidentiary record does not indicate the service-connected right shoulder tendonitis was manifested by ankylosis or impairment of the humerus to warrant a rating in excess of 40 percent from November 7, 2019 to May 17, 2020. The evidentiary record includes VA and private treatment records and the November 2019 VA examination report, which document active range of motion findings of the Veteran's right shoulder. The VA examiner also specifically documented no findings of ankylosis in the Veteran's right shoulder. Moreover, the evidentiary record, and the Veteran, is silent for any findings of impairment of the right humerus. The Board has considered other potentially applicable Diagnostic Codes. Schafrath, 1 Vet. App. at 595. In this case, the evidence does not reflect that there are any other musculoskeletal disorders of the shoulder that the Veteran's right shoulder disability is more properly rated under another Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Accordingly, an increased evaluation under alternate Diagnostic Codes is not warranted. Lastly, given that the Veteran is already in receipt of the schedular maximum for limitation of motion of the major arm from November 7, 2019 to May 17, 2020 under both the old and new criteria, inquiry into the DeLuca factors is moot, as are any Sharp deficiencies. See Sharp, 29 Vet. App. at 35-36; Johnston v. Brown, 10 Vet. App. 80, 87 (1997); DeLuca, 8 Vet. App. at 206. REASONS FOR REMAND Entitlement to a rating in excess of 40 percent since July 1, 2021 for right shoulder tendonitis (status post replacement) The Board also considers whether a rating in excess of 40 percent since July 1, 2021 under Diagnostic Code 5051 (prosthetic replacement of the shoulder joint) for right shoulder tendonitis is warranted in this case. See 38 C.F.R. § 4.71a. Review of the record is silent for any lay or medical evidence regarding the severity of the service-connected right shoulder tendonitis (status post replacement) since July 1, 2021. Notably, the Veteran underwent right shoulder replacement surgery in May 2020. Since that time, his disability has been evaluated under a different Diagnostic Code to reflect this surgery. He is in receipt of a 100 percent rating from May 17, 2020 to July 1, 2021, and as such an increased rating is not available for that period. He has not had a VA examination since his surgery, and no examiner has formally evaluated his shoulder under the new criteria. As a result, additional development is needed to properly adjudicate the period from July 1, 2021. See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.159 (2020); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected right shoulder tendonitis (status post replacement). The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. After completing the above, and any other development deemed necessary, readjudicate the appeal for entitlement to an increased rating from July 1, 2021. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. J. GALLAGHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.