Citation Nr: 21074918 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-52 159 DATE: December 16, 2021 ORDER An initial disability rating of 30 percent, but no higher, for the service-connected left shoulder disability, to include bicipital tendon tear and rotator cuff tear, is granted from February 20, 2016 onward. An initial disability rating in excess of 20 percent for the service-connected radiculopathy of the left lower extremity is denied. REMANDED Entitlement to a separate rating for radiculopathy of the left upper extremity secondary to a service-connected disability is remanded. FINDINGS OF FACT 1. Since February 20, 2016, the Veteran's service-connected left shoulder disability is manifested by motion of the major arm limited to no worse than midway between the side and shoulder level; neither ankylosis, impairment of the humerus, nor impairment of the clavicle or scapula has been shown. 2. The evidence of record shows the Veteran's service-connected radiculopathy of the left lower extremity is manifested by no worse than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. With resolution of all doubt in the Veteran's favor, the criteria for the assignment of a disability rating of 30 percent, but no higher, for the service-connected left shoulder disability are more nearly approximated from February 20, 2016 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for the assignment of a disability rating in excess of 20 percent for the service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to March 1989, January 1991 to March 1991, July 1994 to March 1995, April 1995 to August 1995, and December 2001 to November 2015. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2016, a May 2016 and an August 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In the March 2016 rating decision, the RO granted service connection for left shoulder rotator cuff tear, and assigned an initial 20 percent disability rating, effective from November 2015. The RO also granted service connection for lumbosacral strain and assigned an initial 40 percent rating effective from November 2, 2015. In the May 2016 rating decision, the RO granted service connection for left shoulder bicipital tendon tear, and assigned an initial 20 percent disability rating, effective from November 2015. In the August 2016 rating decision, the RO found clear and unmistakable error in having a separate rating for the left shoulder bicipital tendon tear and a separate rating for the left shoulder rotator cuff tear and combined the ratings into one total 20 percent rating for the left shoulder. The Veteran's notice of disagreement was received in November 2016. The RO issued a statement of the case in September 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in September 2017. In February 2019, the Veteran testified at a video conference Board hearing before a Veterans Law Judge who is no longer available to participate in this decision. A transcript of the testimony is associated with the claims file. In November 2019, the Board denied a disability rating in excess of 20 percent for the left shoulder bicipital tendon tear with rotator cuff tear for the period on appeal prior to January 16, 2016; and, granted a 40 percent disability rating for the left shoulder bicipital tendon tear with rotator cuff tear for the period on appeal from January 16, 2016 to February 15, 2016; and, denied a rating in excess of 20 percent for the left shoulder bicipital tendon tear with rotator cuff tear for the period on appeal from February 16, 2016 to February 19, 2016. For the period from February 20, 2016 onward, the Board remanded that portion of the claim for additional development of the record. After the case was returned to the Board following completion of the remand directives, the Veteran was sent a letter in March 2021 notifying him that the VLJ who conducted the February 2019 hearing was no longer a Veterans Law Judge at the Board. The Veteran was provided with the opportunity for another hearing with a Veterans Law Judge who would decide his appeal. In April 2021 correspondence, the Veteran responded that he did not want another Board hearing and wished to proceed with adjudication. During the pendency of the appeal, the RO issued a rating decision in December 2020 that assigned a separate 20 percent rating for left lower extremity radiculopathy associated with the service-connected lumbar spine disability. As this rating is not a complete grant of benefits sought on appeal, the issue remains in appellate status. In February 2021, the RO issued Supplemental Statement of the Case (SSOC) confirming the 20 percent rating assigned for the left lower extremity radiculopathy. In June 2021, the Board remanded the case to the RO for further development and adjudicative action. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial disability rating in excess of 20 percent for the service-connected left shoulder disability from February 20, 2016 onward. The Veteran asserts that his left shoulder disability warrants a higher rating than currently assigned. For the period on appeal the Veteran's service-connected left shoulder disability currently is evaluated at 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5201. During the pendency of the appeal, the rating criteria for evaluating musculo-skeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. 38 U.S.C. § 5110 (g). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint." See Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Since February 2016, the Veteran submitted one March 2016 private shoulder examination and was afforded three VA shoulder examinations, one in December 2016, one in September 2020 and most recently in August 2021. Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203 which distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. 38 C.F.R. § 4.71a. The evidence shows the Veteran to be left-hand dominant. See December 2016, September 2020, and August 2021 VA examinations. Given such, the applicable rating will be assigned under the "Major" rating. As noted above, the Veteran's left shoulder disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under the pre-amended Diagnostic Code 5201, limitation of motion in the major extremity is as follows: limitation to shoulder level warrants a rating of 20 percent; limitation to midway between side and shoulder level warrants a rating of 30 percent; and limitation of motion to 25 degrees from the side warrants a rating of 40 percent. Recent amendments to Diagnostic Code 5201, effective February 7, 2021, clarify that limitation of motion of the arm to shoulder level is equivalent to flexion and/or abduction limited to 90 degrees and limitation of motion to midway between side and shoulder level is equivalent to flexion and/or abduction limited to 45 degrees. 85 Fed. Reg. 76,453 (Nov. 30, 2020). See also, 38 C.F.R. § 4.71a, Diagnostic Code 5201 (effective February 7, 2021). Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Federal Circuit has held that the plain language of 38 C.F.R. § 4.71a confirms that a veteran is only entitled to a single disability rating under Diagnostic Code 5201 for each arm that suffers from limited motion at the shoulder joint. The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to "limitation of motion of" the arm. See Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). Here, in both examinations, the Veteran was unable to raise his arm above his shoulder. According to all three examinations, the Veteran underwent left shoulder arthroscopic reconstructive surgery in August 2015. The residuals of his injuries consist of chronic pain, inability to lift heavy objects and limited range of motion. During the March 2016 private examination, the Veteran reported pain and difficulty with activity at about the level of the shoulder. The private doctor noted forward elevation (flexion) to 120 degrees, with strength measured at 4 out of 5. In the December 2016 VA examination, the examiner diagnosed arthrosis of the glenohumeral right shoulder, cortical irregularity on the superior margin of the acromion of the left shoulder and Hill Sachs deformity of the left shoulder based on imaging. The Veteran reported no flare-ups but described increased symptoms with overuse. The Veteran further reported having no functional loss or impairment. However, VA examiner noted that he was unable to test for range of motion for both the left and right shoulder due to pain reported by the Veteran. The examiner was unable to observe repetitive use, and use over time. As to functional limitation due to pain, weakness, fatiguability or incoordination, the examiner stated he was unable to sate without mere speculation because: Expressing any functional limitation due to flare-ups, or when the joint is used repeatedly over a period of time, including ROM in terms of degrees, would be mere speculation, as the Veteran was unable to replicate a flare-up at the time of exam. The examiner noted impairment of the humerus, the shoulder glenohumeral joint, presumably in the right shoulder based on the aforementioned diagnosis. The examiner further found no ankylosis and no clavicle or scapula impairment. Although the Veteran reports flare-ups during both the September 2020 and August 2021 examinations, neither examination was performed during a flare-up. The diagnosis from each examination included bicipital tendon tear and rotator cuff tear to the left shoulder. During the September 2020 VA examination, the examiner noted the Veteran's range of motion limited to 90 degrees. The examiner further noted the Veteran's condition as currently moderate and that he continues to have decreased range of motion and pain which increases with prolonged use and during flare-ups. See September 2020 Shoulder Examination Medical Opinion. Notably, the Veteran's range of motion is more limited during flare-ups which can last for hours with functional impairment to include inability to lift most objects, drive for prolonged periods of time, or lift arms overhead. Id. In the August 2021 VA examination, the examiner noted the Veteran's range of motion limited to 80 degrees, with evidence of pain in weight-bearing, non-weight bearing, active and passive motion, and at rest or non-movement. The examiner further noted pain with movement and a decreased range of movement since his last examination. In a September 2021 statement in support of his claim, the Veteran states, The [August 2021] examiner tested the flexion of my left shoulder by just asking me to raise my arm and say when I felt pain. The flexion was never measured at my shoulder/arm distance to see what degree I stopped at. The December 2016 VA examination in which no range of motion recordings were taken is of no probative value, as the Veteran's subsequent VA examinations in September 2020 and August 2021 showed the Veteran had movement in the shoulders. Thus, it would appear that the Veteran's left shoulder disability improved between the time of the December 2016 examination and the time of the September 2020. However, the Veteran has consistently reported that his left shoulder symptoms have worsened in severity over time. Therefore, the Board cannot find the December 2016 examination probative because if it worsened in severity then presumably the subsequent examination would not show any improvement. Resolving all doubt, based on the Veteran's credible and competent statement, that each examination occurred when the Veteran was not experiencing a flare-up, and the September 2020 examiner's finding of decreased range of motion during flare-ups the Veteran's overall disability picture is manifested by motion of the major arm limited to midway between the side and shoulder level consistent with a 30 percent rating. Although the examiner in September 2020 indicated that the Veteran's motion was limited to 90 degrees, the examination was not conducted during a flare-up, and it can be reasonably inferred that the Veteran's motion would be further limited due to pain and fatigue during flareups. Although the examiner did not estimate to what degree motion would be further limited by pain and fatigue during a flare-up, the However, a rating in excess of 30 percent is not warranted as his flexion was not limited to 25 degrees at any point during the appeal period. The Veteran's service-connected left shoulder disability is manifested by motion of the major arm limited to no worse than midway between the side and shoulder level; neither ankylosis, impairment of the humerus, nor impairment of the clavicle or scapula has been shown. Under Diagnostic Code 5200, for the major joint, a rating of 30 percent is warranted if there is evidence of scapulohumeral articulation ankylosis of the major joint with favorable abduction to 60 degrees and the Veteran can reach mouth and head. A rating of 40 percent is warranted if there is evidence of scapulohumeral articulation of the major joint with intermediate ankylosis between favorable and unfavorable. A rating of 50 percent is warranted if there is evidence of scapulohumeral articulation, ankylosis of the major joint with unfavorable abduction limited to 25 degrees from side. 38 C.F.R. § 4.71a, Diagnostic Code 5200. Here, there is no evidence of ankylosis. As such, a rating under Diagnostic Code 5200 is not warranted. Under Diagnostic Code 5202, impairment of the humerus in the major extremity is rated as follows: loss of head (flail shoulder) (80 percent); nonunion (false flail joint) (60 percent); fibrous union (50 percent); recurrent dislocation at scapulohumeral joint with frequent episodes and guarding of all arm movements (30 percent); recurrent dislocation at scapulohumeral with infrequent episodes and guarding of movement only at shoulder level (20 percent); malunion with marked deformity (30 percent); and malunion with moderate deformity (20 percent). Id. Here, there is no evidence of impairment of the humerus of the left shoulder. Accordingly, a rating under Diagnostic Code 5202 is not warranted at this time. Under Diagnostic Code 5203, impairment of the clavicle or scapula in the minor extremity is rated as follows: dislocation (20 percent); nonunion with loose movement (20 percent); nonunion without loose movement (10 percent); and malunion (10 percent). Id. Here, there is no evidence of clavicle or scapula impairment. Therefore, a separate rating under Diagnostic Code 5203 is not warranted. Based on these findings, the Veteran's orthopedic manifestations of his left shoulder disability, for the period on appeal from February 20, 2016, more nearly approximate the criteria for the assignment of a 30 percent rating, but no higher, based on limited range of motion, and the Veteran's lay statements as to the additional degree of painful motion observed during flare-ups. Additionally, as the evidence of record does not demonstrate ankylosis, humerus impairment, or clavicle or scapula impairment at any time during the pendency of the appeal, Diagnostic Codes 5200, 5202, and 5203 are not applicable. 2. Entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity. For the period on appeal the Veteran's service-connected radiculopathy of the right lower extremity is currently evaluated 20 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Regarding the Veteran's service-connected lower left extremity, diseases of the peripheral nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve. Id. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury to the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section with sciatic nerve involvement will be that for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for paralysis with marked muscular atrophy. A maximum 80 percent rating is assigned for compete paralysis of the sciatic nerve where the foot dangles and drops, no active movement is possible of the muscles below the knee, or flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a.. In the September 2020 VA Thoracolumbar Spine examination, the examiner noted moderate radiculopathy in the left lower extremity. During the August 2021 VA Peripheral Nerve Conditions examination, the examiner diagnosed radiculopathy of the lower left extremity. The Veteran reported the condition had worsened since its onset with current symptoms of numbness, tingling, and pain which he treats with Percocet. Upon examination, the examiner noted mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness but not moderate or severe. Muscle strength, reflexes and sensory were all normal. As to the sciatic nerve, the examiner noted "moderate" incomplete paralysis. The examiner concluded the overall severity of the Veteran's incomplete paralysis of the sciatic nerve was moderate and provided the following rationale: Back pain will become worse when the veteran has to sit or stand for prolonged periods of time. This will cause increased numbness, pain and tingling to his left lower extremity. Veteran reports these symptoms will go away once he sits down to rest. Based on these findings, the Veteran's incomplete paralysis of the sciatic nerve is no worse than moderate in severity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A rating in excess of 20 percent is not warranted under Diagnostic Code 8520, 38 C.F.R. § 4.124a as the medical evidence does not demonstrate moderately severe incomplete paralysis, severe incomplete paralysis with marked muscular atrophy, or complete paralysis. Id. The findings are not constant, and can be alleviated by rest. The medical evidence provides findings that are more consistent with an overall disability picture more nearly approximating moderate, but not moderately severe, incomplete paralysis. As the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 20 for the service-connected radiculopathy of the left lower extremity, the benefit of the doubt doctrine is inapplicable, and the Veteran's claims for increased ratings must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Whether a separate rating for radiculopathy of the left upper extremity is warranted as secondary to a service-connected disability. In a September 2021 statement in support of his claim, the Veteran asserts he has radiculopathy down his left arm supported by a private June 2016 CT Scan showing "multilevel asymmetric degenerative sclerotic ischemic intervertebral disc space/endplate disease." In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The June 2016 private CT scan of the Veteran's lumbar spine notes multilevel asymmetric degenerative sclerotic ischemic intervertebral disc space/endplate disease changes most severe at T11-T12, L4-L5. With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given the Veteran's lay statements and June 2016 CT Scan results, the low threshold of the McLendon standard has been met in this instance, and the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. See McLendon, 20 Vet. App. at 83. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination with a neurologist, if possible, to determine the current nature and likely etiology of any radiculopathy of the left upper extremity. Following a review of the record, to include a copy of this Remand, and the June 2016 private CT Scan and all necessary testing, the clinician should address the following inquiry: a. If radiculopathy of the left upper extremity is found, opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any current left upper extremity radiculopathy is related to the Veteran's left shoulder disability or is it related to another service-connected disability to include lumbosacral strain with degenerative changes and intervertebral disc syndrome (IVDS)? (Continued on the next page) A complete rationale for all opinions must be offered and provided. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.