Citation Nr: 21076155 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-44 075 DATE: December 22, 2021 ORDER Entitlement to a rating in excess of 30 percent for service-connected residuals of right shoulder acromioclavicular separation (right shoulder disability) is denied. FINDING OF FACT 1. The Veteran is right hand dominant, making his right shoulder the major side. 2. The Veteran's right shoulder disability is not productive of ankylosis of scapulohumeral articulation; impairment of the humerus; or arm motion (flexion or abduction) functionally limited to 25 degrees from the side. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for service-connected right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107, (2018); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to May 1991, and from March 2003 to May 2004. In December 2018 and May 2021, the Board remanded the claim for further development. The case has now returned for adjudication. Subsequently, in an August 2021 rating decision the RO increased the Veteran's right shoulder disability rating to 30 percent for the entire period on appeal, effective August 7, 2014. Increased Ratings Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran is in receipt of a 30 percent rating for his service-connected right shoulder disability. The Veteran is right-hand dominant, and his disability is rated pursuant to DC 5201. During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 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). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the relevant rating criteria were as follows: Under DC 5201, limitation of motion of the arm midway between side and shoulder warrants a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, DC 5201. DC 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). As of February 7, 2021, the changes to the DCs are as follows. DC 5201 now provides that flexion and/or abduction limited to 25 degrees from side warrants a 40 percent rating for the major extremity. Limitation of motion of midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 30 percent rating for the major extremity and 20 percent for the minor extremity. Normal shoulder motion is defined as zero to 180 degrees of forward elevation (flexion) and 0 to 180 degrees from the side of the body out to the side (abduction). The Board interprets flexion or abduction of 25 degrees or less as movement limited to 25 degrees from the side. 38 C.F.R. § 4.71, Plate I. Although the Veteran had VA examinations in January 2015 and September 2019, they were deemed inadequate for rating purposes. Nevertheless, the Board notes that he did not display range of motion(ROM) limited to 25 degrees from the side. At a June 2020 VA examination, the examiner noted diagnoses of rotator cuff tendonitis, acromioclavicular (AC) joint separation, and degenerative arthritis of the right shoulder. Upon physical examination, the Veteran's right shoulder initial ROM was 50 degrees in flexion, 60 degrees in abduction, with a limitation of 45 degrees in flexion and 55 degrees in abduction after repetitive testing and due to flare ups. There was objective evidence of pain on passive ROM testing of the shoulder and non-weight bearing testing of the shoulder. There was mild to severe evidence of localized tenderness or pain to palpation over the entire right shoulder. The report notes no findings of muscle atrophy; ankylosis; or loss of head, nonunion, or fibrous union of the humerus. The Veteran described his flare ups as severe in nature, lasting one to two hours, and occurring four to five times monthly. He reported an inability to use his arm at or above shoulder level, and being unable to push, pull or lift items heavier than ten pounds. He reported difficulty reaching, concentrating, and that his disability affected his sleep and mood. The Veteran's June 2021 VA examination showed right shoulder ROM limited to 45 degrees in flexion and 60 degrees in abduction. The examiner noted a diagnosis of residuals of right shoulder AC separation, status post arthroscopic subacromial decompression. There was tenderness to palpation over the anterior shoulder estimated at a level of nine out of ten. There was moderate to severe tenderness and pain over the AC joint and supraspinatus. The Veteran performed repetitive-use testing with at least three repetitions with no additional loss of function or ROM. The examiner indicated the examination was not conducted during a flare up. The report notes no findings of muscle atrophy; ankylosis; or loss of head, nonunion, or fibrous union of the humerus. The Veteran reported constant right shoulder joint pain ranging from three to nine out of ten that alternated between dull and sharp with weakness. The Veteran reported flare ups as being unpredictable, lasting up to 24 hours, that he estimated at a level of nine out of ten, and feeling sharp and stabbing in nature. He also described difficulty reaching above his shoulder, with heavy lifting, pushing, and pulling. In a September 2021 addendum to the June 2021 VA examination, the examiner noted that the Veteran reported pain at 45 degrees flexion and 60 degrees abduction. After a careful review of the evidence, both lay and medical, the Board finds that a rating higher than 30 percent for the service-connected right shoulder disability is not warranted. Throughout the pendency of the appeal, the evidence shows the Veteran's ROM of the right shoulder during the appeal period was limited to, at worst, 45 degrees from the side. Therefore, the Board finds that with consideration of repetitive motion and flareups, he experiences a limitation midway between side and shoulder level. This is the degree of severity already contemplated by his 30 percent rating, under both the former and new rating criteria. Despite the Veteran's credible complaints of pain and flare ups, the evidence of record does not reflect his right arm was restricted to 25 degrees from his side. Further, the Veteran has not been shown to have ankylosis of the scapulohumeral articulation or clavicle and/or scapula impairment. Nor is there objective evidence of impairment of the humerus, such as loss of the head of the humerus (flail shoulder), nonunion of the shoulder (flail joint), fibrous union of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, or malunion of the humerus. Accordingly, the Board finds that the criteria pertaining to rating those disabilities are not applicable. See 38 C.F.R. § 4.71A, DCs 5200, 5202, 5203. The Board has considered whether functional loss due to flare-ups of pain, spasms, numbness, and tenderness warranted a higher rating. DeLuca v. Brown, 8 Vet. App. 202 (1995). The record shows the Veteran has difficulty with lifting, pulling, and reaching, along with other functional loss due to pain, weakness, and tenderness. However, there is no evidence to suggest that his functional loss resulted in a limitation of motion to 25 degrees, or in a close approximation to this level of loss, which is required for the next higher rating. 38 C.F.R. §§ 4.40, 4.71A, DC 5201; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran's functional loss as listed is encompassed within his rating under DC 5201. Therefore, since the preponderance of the evidence is against the assignment of a rating higher than 30 percent for a right shoulder disability for the rating period on appeal, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.