Citation Nr: 21075381 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-12 175 DATE: December 20, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative joint disease of the right shoulder is denied. FINDING OF FACT The Veteran's right shoulder disability is manifested by pain and limitation of motion of the major extremity no worse than to shoulder level. CONCLUSION OF LAW The criteria for a rating greater than 20 percent for degenerative joint disease of the right shoulder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5203-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1996. The Board of Veterans' Appeals (Board) remanded the issue above in May 2021 to the VA Agency of Original Jurisdiction (AOJ). As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes. VA's schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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 that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 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 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." 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. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a rating in excess of 20 percent for degenerative joint disease of the right shoulder The Veteran contends that he is entitled to a higher rating for his service-connected right shoulder disability because he has increased flare-ups of pain and difficulty with heavy or overhead lifting. See March 2021 testimony. The Veteran's degenerative joint disease of the right shoulder is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5203-5201, for limitation of motion of the arm. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Prior to February 7, 2021, pursuant to Diagnostic Code 5003, arthritis, degenerative (hypertrophic or osteoarthritis), established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4,71a, Diagnostic Code 5003. Effective February 7, 2021, Diagnostic Code 5003 was revised as follows: Degenerative arthritis, other than post-traumatic: Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent disability rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent disability rating is warranted. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 CFR Part 4, Schedule for Rating Disability: Musculoskeletal System and Muscle Injuries; Correction, 85 Fed. Reg. 249, 85523 (December 29, 2020). Under Diagnostic Code 5201, prior to February 7, 2021, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Effective February 7, 2021, the criteria for limitation of motion of the arm under Diagnostic Code 5201 was revised to clarify that limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201). Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 5201 "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." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). At the outset, the Board notes that Diagnostic Code 5051 which provides ratings for shoulder replacement (prosthesis); 5200 which provides ratings for ankylosis of the scapulohumeral articulation; 5202 which provides ratings for other impairment of the humerus; and 5203 which provides ratings for impairment of the clavicle or scapula are not applicable in this case, as there is no evidence that the Veteran has had shoulder replacement; ankylosis of the scapulohumeral articulation; other impairment of the humerus; and/or impairment of the clavicle or scapula. See June 2015 and August 2021 VA examinations. The Board finds that the preponderance of the evidence supports a rating of 20 percent during the entire appeal period for the Veteran's right shoulder disability as there was objective evidence of pain and limitation of motion. However, the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's right shoulder disability. The evidence of record shows that the Veteran is right-handed. See reports of June 2015 and August 2021 VA examinations. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, and pain during flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare-ups of pain limited the use of his right arm overhead would not result in symptoms more nearly approximating limitation of motion of the arm to midway between side and shoulder (45 degrees from side), which is required for the next higher rating of 30 percent under both the pre February 7, 2021 and post February 7, 2021 Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries. The Board notes that VA treatment records throughout the period on appeal noted right shoulder pain and that the Veteran had difficulty lifting objects over his head. On VA examination in June 2015, the Veteran was diagnosed with acromioclavicular (AC) joint osteoarthritis of the right shoulder. He reported flare-ups with weather changes and lifting greater than 50 pounds that were manifested by increased pain. He treated his pain with Celebrex and water aerobics. Right shoulder flexion was from 0 to 160 degrees, abduction was from 0 to 180 degrees, internal rotation was from 0 to 50 degrees, and external rotation was from 0 to 70 degrees. Pain was noted upon examination with flexion and internal rotation but did not result in/cause functional loss. There was no objective evidence of localized tenderness or pain on palpitation of the right shoulder joint. Also, there was no additional functional loss after repetitive use testing. Muscle strength was normal. He did not have muscle atrophy or ankylosis. A rotator cuff condition was suspected as he had a positive Lift-off Subscapularis Test. Right shoulder instability, dislocation, or labral pathology was not suspected. A clavicle, scapula, of AC joint condition was suspected; however, an AC joint condition or other clavicle/ scapula impairment was not found. There was no tenderness on palpitation of the AC joint and the Cross-body Abduction Test was negative. He did not have loss of head, nonunion, or fibrous union of the humerus. The Veteran underwent surgery to repair his right shoulder rotator cuff. He had a right shoulder scar which measured 7 centimeters (cm) x 0.2 cm. The scar was stable, well healed, without tenderness, erythema, edema, skin loss, or induration. An image study of the right shoulder showed degenerative or traumatic arthritis. The VA examiner found that the Veteran's right shoulder disability did not impact his ability to perform an occupational task. In an August 2015 statement, the Veteran stated that he was able to raise his right arm to shoulder height, but no higher due to pain. He noted that his right shoulder strength had diminished and that he did not expect it to return. During his March 2021 Board hearing, the Veteran asserted that his right shoulder disability was manifested by shooting pain, loss of grip strength, and that it caused decreased range of motion. On VA examination in August 2021, the Veteran was diagnosed with right shoulder degenerative arthritis, other than posttraumatic, status-post right shoulder rotator cuff repair surgery, and rotator cuff repair surgery scarring, right shoulder. The Veteran reported sharp, intermittent right shoulder pain, difficulty reaching up or overhead, lifting or carrying heavy items (over 10 pounds), difficulty putting on socks/shoes, difficulty with yardwork, and difficulty bathing. His symptoms included right shoulder pain, stiffness, tenderness around the AC joint, and decreased range of motion. He treated his symptoms with physical therapy, Tylenol, and Motrin. He reported weekly flare-ups of moderate to severe right shoulder pain that lasted hours. His flare-ups were precipitated by lifting his arm over his head or carrying heavy items. Right shoulder flexion was from 0 to 110 degrees, abduction was from 0 to 110 degrees, internal rotation was from 0 to 60 degrees, and external rotation was from 0 to 70 degrees. On examination, the Veteran exhibited pain with active and passive range of motion testing. There was no additional functional loss after repetitive use testing, repeated use testing, or with passive range of motion testing. Range of motion itself contributed to functional loss. There was objective evidence of moderate localized tenderness or pain on palpitation of the right AC joint that was found to be related to his service-connected condition. The examiner estimated that the range of motion upon flare-ups based on information from relevant sources, including the Veteran's statements, as flexion and abduction from 0 to 105 degrees, internal rotation from 0 to 55 degrees, and external rotation was from 0 to 65 degrees. The Veteran exhibited moderate pain disturbance of locomotion and weakened movement. He did not have muscle atrophy or ankylosis. A rotator cuff condition was suspected as he had a positive Hawkins impingement test and positive empty can test. The Veteran did not have right shoulder instability, dislocation, or labral pathology. He did not have mechanical symptoms, nor were there current residuals of recurrent dislocation (subluxation) of the glenohumeral joint. Although there was tenderness or palpitation of the AC joint, a clavicle, scapula, or AC joint condition was not found/diagnosed. He did not have loss of head, nonunion, or fibrous union of the humerus. The Veteran underwent right rotator cuff repair surgery in 1996 and 2005. His surgical residuals were pain and limited range of motion. His surgical scar measured 6 cm x 0.1 cm on the anterior right shoulder. The VA examiner found that the Veteran's right shoulder disability impacted his ability to perform an occupational task as he reported sharp, intermittent pain, difficulty reaching up or overhead, raising arms, as well as lifting and carrying heavy items (over 10 pounds). Also, the examiner found that the Veteran's right shoulder condition will moderately impact his ability to perform both physical and sedentary occupational tasks due to sharp, intermittent pain, difficulty reaching overhead, raising arms, as well as lifting and carrying heavy items. He reported a negative impact of his daily activities, such as difficulty putting on socks/shoes, yardwork, and bathing. Thus, the Veteran's right shoulder condition would limit his ability to perform many required occupational tasks. In December 2021, the Veteran's representative argued that the August 2021 VA examiner did not address the Veteran's lay statements, nor provided an opinion on the Veteran's repeated use of his right shoulder over time. However, the VA examiner noted that the Veteran reported sharp, intermittent right shoulder pain, difficulty reaching up or overhead, lifting or carrying heavy items (over 10 pounds), difficulty putting on socks/shoes, difficulty with yardwork, and difficulty bathing. His symptoms included right shoulder pain, stiffness, tenderness around the AC joint, and decreased range of motion. Further, the examiner noted that the Veteran was being examined immediately after repeated use over time and that there was procured evidence (statements from the Veteran) that suggest pain, fatiguability, and lack of endurance significantly limited functional ability with repeated use over time; however, there was no additional functional loss after repetitive use testing or repeated use testing. Also, the Veteran's representative incorrectly noted that the "examiner didn't provide a full description of the effects of [the Veteran's] disability on his ordinary activity. Merely stated [the] Veteran's right shoulder condition will moderately impact his ability to perform physical and sedentary occupational tasks." The Very next two sentences in the VA examination report states that the Veteran reported sharp, intermittent pain, difficulty reaching overhead, raising arms, as well as lifting and carrying heavy items. He reported a negative impact of his daily activities, such as difficulty putting on socks/shoes, yardwork, and bathing. Thus, the Veteran's right shoulder condition would limit his ability to perform many required occupational tasks. Therefore, the Board finds that the August 2021 VA examination is adequate to adjudicate the claim. The VA examiner reviewed the Veteran's medical history, fully addressed the Veteran's contentions, and sufficiently explained his findings. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. There is no evidence of ankylosis of the scapulohumeral articulation, nor impairment such as nonunion, malunion or recurrent dislocation of the humerus, to warrant consideration under Diagnostic Codes 5200 and 5202. A higher rating is not warranted under Diagnostic Code 5203 as impairment of the clavicle or scapula is not shown and the maximum rating available under Diagnostic Code 5203 is 20 percent disabling. For the entire appeal period, the Veteran's right shoulder disability is rated under as 20 percent Diagnostic Code 5201 for limitation of motion of the arm. Notably, the June 2015 and August 2021 VA examination reports determined that the Veteran's scar located on the anterior right shoulder was found to be not painful or unstable and did not have a total area greater than 39 square cm. I August 2021, the Veteran was awarded service-connection his right shoulder scar with a noncompensable (0 percent) disability rating. Thus, consideration of a separate evaluation for scars is not applicable. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for degenerative joint disease of the right shoulder. Even when considering range of motion upon flare-ups, the Veteran has been able to raise his right arm above 90 degrees. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Additionally, 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 (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). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.