Citation Nr: 21075890 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-31 157A DATE: December 21, 2021 ORDER Entitlement to a rating in excess of 20 percent for left shoulder degenerative joint disease (left shoulder disability) from January 22, 2013 to November 1, 2015 is granted. FINDING OF FACT From January 22, 2013 to November 1, 2015, the Veteran's left shoulder disability more nearly approximates ankylosis required for a maximum 40 percent rating under Code 5200 for left shoulder. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a 40 percent rating for left shoulder disability for the service-connected left shoulder disability are met from January 22, 2013 to November 1, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5010, 5200, 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to August 1999. In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board of Veterans' Appeals (Board) hearing. A transcript of the hearing is associated with the claims file. The Board originally denied the Veteran's claim for rating in excess of 20 percent for left shoulder disability prior to November 2, 2015 in the July 2019 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2020 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated parts of the Board's decision and remanded the claim to the Board for action consistent with the terms of the JMPR. See July 2020 JMPR. In the JMPR, the parties agreed that with regard to the Veteran's left shoulder rating claim, the Board relied upon the August 2014 VA examination report, which provided an inadequate discussion of additional limitations during flare-ups or repeated use pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017) and failed to provide range of motion results that comply with Correia v. McDonald, 28 Vet. App. 158 (2016). The Board remanded the claim in February 2021 and July 2021 in order to obtain an opinion that complied with the JMPR. The matter now returns for further appellate review. 1. Entitlement to a rating in excess of 20 percent for left shoulder degenerative joint disease (left shoulder disability) from January 22, 2013 to November 1, 2015 The Veteran seeks a rating in excess of 20 percent for his service-connected left shoulder disability. See September 2013 VA Form 9. Legal Criteria The Veteran's left shoulder condition is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201, based on limitation to motion. The Board notes that the rating criteria applicable to musculoskeletal system conditions was revised effective February 7, 2021. See 38 C.F.R. § 4.71a; 85 Fed. Reg. 76453(Nov. 30, 2020); 85 Fed. Reg. 85523 (Dec. 29, 2020); 86 Fed. Reg. 8142 (Feb. 4. 2021). However, while the rating criteria for DC 5201 was revised, such revision simply clarified that "shoulder level" means flexion or abduction at 90 degrees, and that "midway between side and shoulder level" means flexion or abduction limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5201 (2020); 38 C.F.R. § 4.71a, DC 5201 (2021). As such, a determination as to whether the prior or revised criteria is more beneficial to the Veteran is not necessary here. DC 5201 provides that limitation of motion of the arm at shoulder level warrant a 20 percent rating. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity and 20 percent rating for the minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. See 38 C.F.R. § 4.71a, DC 5201. Under DC 5200, for favorable ankylosis with abduction to 60 degrees and ability to reach mouth and head, a 20 percent rating is warranted for the minor side. For intermediate ankylosis between favorable and unfavorable, a 30 percent rating is warranted for the minor side. For unfavorable ankylosis and abduction limited to 25 degrees from the side, a 40 percent rating is warranted for the minor side. Additionally, where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. See DeLuca v. Brown, 8 Vet. App. 202(1995). However, pain may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. See Mitchell v. Shinseki, 25 Vet. App. 31 (2011). Within this context, the Board notes that a veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, including as due to pain. 38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117(2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2020). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). Factual Background A September 2013 VA occupational therapist was unable to test the Veteran's left shoulder range of motion (ROM) due to recent cervical spine surgery. See September 2013 VA Occupational Therapy Initial Evaluation Note in CAPRI received March 2014. The Veteran's private treatment records confirm that he reported increased shoulder pain in December 2013. See December 2013 Stafford Physical Therapy Record. The Veteran reported increased bilateral shoulder pain greater in the right and left shoulder in January 2013. See Stafford Physical Therapy Private Treatment Record. The Veteran also reported severe bilateral shoulder pain during a March 2014 VA Orthopedic Surgery consultation. See March 2014 VA Orthopedic Surgery Consult Record in CAPRI received March 2014. The Veteran underwent a VA examination in August 2014 to assess the severity of his left shoulder disability. See August 2014 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). The Veteran reported constant pain rated as 10 out of 10 in his left shoulder with limited range of motion. Id. He further reported that he is unable to lift more than five (5) pounds or lift his arm above his head during a flare-up. Id. The examiner noted that the Veteran's dominant hand is his right hand. The ROM testing for the left shoulder indicated flexion to 90 degrees, and abduction to 90 degrees with no objective evidence of painful motion. He was noted to have pain on movement, less movement than normal, and incoordination, impaired inability to execute skilled movements in his left shoulder. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation of ROM. No ankylosis or guarding was noted in his left shoulder. The Veteran had positive Hawkins' and Neer's impingement tests of his left shoulder. Id. Muscle strength testing revealed normal strength in shoulder abduction and forward flexion. The examiner found no mechanical symptoms such as clicking and catching in his left shoulder. Id. No impairment of the clavicle or scapula was noted, and the examiner found no flail shoulder, nonunion, fibrous union, or malunion of the humerus. The examiner also indicated that the Veteran had arthroscopic shoulder surgery and noted three well-healed superficial scars that were painless. Id. The examiner concluded that the Veteran was unable to lift his left arm above his head and that limitation in his ROM was caused by pain, weakness, fatigability, and incoordination. Id. In May 2015, the Veteran reported that medications and injections did not relieve his shoulder pain. See May 2015 VA Orthopedic Surgery Consultation, in CAPRI received November 2015. The orthopedic physician indicated that the Veteran may benefit from surgery and recommended a consultation for a surgical evaluation. In November 2015, the Veteran underwent a left shoulder arthroscopy and debridement and rotator cuff repair, as well as an open reduction and internal fixation. See November 2015 University of Maryland Operative Report. In December 2015, the Veteran underwent additional surgery to remove hardware due to left shoulder postoperative wound infection. See December 2015 University of Maryland Operative Report. As noted in the introduction, the parties to the July 2020 JPMR agreed that the Board relied upon the August 2014 VA examination report regarding the Veteran's left shoulder disability report which provided an inadequate discussion of additional limitations during flare ups or repeated use pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017) and failed to provide range of motion results that comply with Correia v. McDonald, 28 Vet. App. 158 (2016). The Board found the April 2021 VA medical opinion did not comply with the February 2021 remand, as such the Board finds that the April 2021 VA examination report is inadequate for rating purposes. Accordingly, the Board will not address the April 2021 VA examination report. Pursuant to the July 2021 VA Board remand, the VA obtained addendum medical opinions in September 2021. The September 2021 VA examiner provided a retrospective opinion for the period January 22, 2013 to November 1, 2015. See September 2021 VA Addendum Medial Opinion. The examiner noted that the Veteran's left shoulder ROM on active motion was 90 degrees on flexion, 90 on external rotation, 70 degrees on internal rotation. His passive ROM results were unchanged from active ROM results. The examiner also found that the Veteran had pain on weight-bearing and non-weight bearing. Id. She further concluded that there was no evidence of ankylosis. But stated that the Veteran's "additional impairment on flare-ups or repetitive does equate to the functional equivalent of ankylosis of the shoulder temporarily until the shoulder rests." Id. In a separate addendum medical opinion, the September 2021 VA examiner also opined that the Veteran's estimated ROM during flare ups was 30 degrees on flexion, 30 degrees on abduction, 60 degrees on external rotation, 60 degrees on internal rotation. See September 2020 VA Medical Opinion DBQ. Analysis After review of the lay and medical evidence of record and in light of the retrospective VA medical opinion from September 2021, the Board finds that the evidence is in equipoise on the question of whether the left shoulder disability is manifested by a limitation of minor arm motion that approximates left arm motion limited to 25 degrees from the side for the entire initial rating period from January 22, 2013 to May 1, 2015. Notably, the September 2021 VA examiner opined that the Veteran's estimated ROM during flare ups was 30 degrees on flexion, 30 degrees on abduction, 60 degrees on external rotation, 60 degrees on internal rotation. See September 2020 VA Medical Opinion DBQ. Additionally, the Veteran reported that constant pain rated as 10 out of 10 in his left shoulder with limited range of motion. Id. He further reported that he is unable to lift more than five (5) pounds or lift his arm above his head during a flare-up. See August 2014 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). In deciding the claim, the Board has also considered the Veteran's statements regarding his left shoulder disability. The Veteran's statements are competent evidence as to the symptoms of his left shoulder disability as this comes to him through his senses. The Board affords probative weight to the Veteran's competent and credible lay statements because his statements are consistent with the medical evidence. Here, because the Veteran's left shoulder abduction was limited to 30 degrees, which was reportedly during a flare-up according to the September 2021 VA examiner's opinion, and the Veteran's statements of severe and constant pain, the Board finds that his left shoulder motion approximates limitation to 25 degrees from the side due to painful limited motion during flare-ups. After consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence demonstrates a disability picture that approximates left shoulder pain manifested by ROM limited to 25 degrees from the side. The Board notes that based solely on the finding that the Veteran's left arm ROM approximates limited motion to 25 degrees from the side qualifies for a 30 percent rating under DC 5201. See 38 C.F.R. § 4.71a, DC 5201. However, the Board notes that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). In this vein, the Board finds, a higher alternative rating is available under DC 5200. Under DC 5200, a 40 percent rating is warranted where there is unfavorable ankylosis of scapulohumeral articulation with abduction limited to 25 degrees from the side. Notably, the September 2021 VA examiner found that the Veteran demonstrated the functional equivalent of ankylosis of the left shoulder during flare-ups. The examiner stated that the Veteran's "additional impairment on flare-ups or repetitive does equate to the functional equivalent of ankylosis of the shoulder temporarily until the shoulder rests." See September 2021 VA Addendum Medial Opinion. Additionally, the Board notes that the Veteran underwent a left shoulder arthroscopy in November 2015 due to severe, unresolved shoulder pain. Applying the above findings to the rating criteria, the Board finds that, considering the Veteran's functional loss of the left shoulder to the extent he had severe left pain which required surgical intervention., the Board finds that the Veteran's left shoulder disability for more nearly approximates a 40 percent rating under DC 5200 for ankylosis of the shoulder, as the symptomatology is commensurate to ankylosis. While the VA examiner did not explicitly assess ankylosis of the shoulder, the extreme limitation of motion of the shoulder coupled with the Veteran's reports of pain and functional loss more nearly approximate ankylosis required for a maximum 40 percent rating under Code 5200 for left (minor) shoulder disability. A higher alternative rating is only available under DC 5202. A 50 percent rating under Code 5202 is warranted where there is nonunion of the humerus. Examining all the evidence, a higher rating under Code 5202 is not warranted, as there is no finding of nonunion or loss of the head of the humerus of the left arm. After a review of all the evidence of record, the Board finds that the left shoulder disability has been manifested by limited arm motion to 25 degrees from the side prior, and more nearly approximating ankylosis as required for a 40 percent rating under DC 5200. Resolving reasonable doubt in the Veteran's favor, the criteria for a disability rating of 40 percent for the entire period on appeal has been met, and a rating of 40 percent has therefore been granted. 38 C.F.R. §§ 4.3, 4.7. 4.71a. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.