Citation Nr: 21076297 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 20-00 396 DATE: December 23, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a left shoulder disability, diagnosed as rotator cuff syndrome, prior to August 21, 2019, is denied. Entitlement to a 30 percent rating for a left shoulder disability, but not higher, beginning August 21, 2019, is granted. REMANDED Entitlement to a separate compensable rating for recurrent dislocation of the left shoulder is remanded. FINDINGS OF FACT 1. Prior to August 21, 2019, the Veteran's left shoulder disability manifested as limitation of motion at shoulder level. 2. From August 21, 2019, the Veteran's left shoulder disability manifested as motion limited to 25 degrees from side. CONCLUSIONS OF LAW 1. Prior to August 21, 2019, the criteria for an initial rating in excess of 20 percent for a left shoulder disability are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.14.14, 4.40, 4.59, 4.71, 4.71a, Diagnostic Code 5201. 2. From August 21, 2019, the criteria for a 30 percent rating, but not higher, for a left shoulder disability are met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.14.14, 4.40, 4.59, 4.71, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps (USMC) from April 2012 to April 2017. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) November 2017 rating decision of the Agency of Original Jurisdiction (AOJ). In September 2020 the Board, in pertinent part, denied the Veteran's claim for a disability rating in excess of 20 percent for his left shoulder disability. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). The Court, pursuant to a Joint Motion for Partial Remand (JMPR), remanded the Veteran's claim back to the Board for further action. Increased Rating Left Shoulder The Veteran seeks an increased rating for his left shoulder disability because his symptoms are more severe than contemplated by the current rating assigned. Specifically, the Veteran asserts that his left shoulder symptoms include numbness, tingling, popping, stiffness, pain, and flare-ups occurring one to two times per week. See e.g. Notice of Disagreement, November 9, 2018; see also Correspondence, October 16, 2019. In addition, his attorney asserts that the Veteran's left shoulder symptoms include dislocation. See Third party correspondence, December 19, 2019. Moreover, his attorney asserts that the Veteran has no range of motion when experiencing flare-ups. Id; see also VA Form 9, December 19, 2019. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Veteran's left shoulder disability manifested by rotator cuff impairment is rated under the provisions of Diagnostic Code 5201, for limitation of motion of arm. Under Diagnostic Code 5201, 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. The record indicates that he is right-hand dominant, so his left shoulder is his non-dominant (minor) upper extremity. See October 2017 VA examination. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the 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). Disabilities and injuries of the shoulder are evaluated under Diagnostic Codes 5200, 5201, 5202 and 5203. See 38 C.F.R. § 4.71a. 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). 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 old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Normal range of motion in the shoulder is from 0 to 180 degrees of forward elevation (flexion); 0 to 180 degrees of shoulder abduction; 0 to 90 for external rotation; and 0 t 90 for internal rotation. See 38 C.F.R. § 4.71a, Plate I. Under Diagnostic Code 5201, for the nondominant extremity, a 20 percent rating is warranted for flexion and or abduction limited to 90 degrees at shoulder level or limited to 45 degrees midway between side and shoulder level; a 30 percent rating is warranted for flexion and or abduction limited to 25 degrees from side. The revised Diagnostic Code 5201 provides further clarification for the rating criteria but no changes to the actual ratings assigned for the nondominant extremity. A 20 percent rating is warranted for limitation of motion to shoulder level (flexion and/or abduction limited to 90 degrees); a 20 rating is always warranted for limitation of motion to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees); a 30 percent rating is assigned for flexion and/or abduction limited to 25 degrees from side. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran was first seen for a VA examination to determine the severity of his shoulder disability in October 2017. At the time, the Veteran was diagnosed with a left shoulder strain. The range of motion of the Veteran's left shoulder was normal, with no noted limitations. Pain was not noted on the examination. While the Veteran reported experiencing flare-ups (which will be discussed in-depth below), there was no additional limitation of motion due to his flare-ups. Muscle strength testing showed normal results, and there were no suspected rotator cuff conditions. The examiner found no evidence of instability or labral pathology, and no clavicle, scapula, acromioclavicular, and/or sternoclavicular conditions were suspected. The Veteran was next seen for a VA examination in August 2019. The examiner found that the Veteran had left shoulder strain as well as rotator cuff syndrome. As with before, the Veteran reported experiencing flare-ups. During the flare-ups, the Veteran explained that his arm goes numb, and he has trouble moving his arm at all. Initial range of motion testing showed normal external and internal rotation, while his flexion was limited to 130 degrees (out of 180) and his abduction was limited to 160 degrees (out of 180). The results of repetitive use testing showed marked increase in the limitation of the motion of his shoulder. The flexion and abduction in his left shoulder were both limited to 90 degrees, his external rotation was limited to 45 degrees (out of 90), and internal rotation was limited to 30 degrees (out of 90). A review of the Veteran's range of motion during flare-ups showed a further limitation of motion in his left shoulder. His flexion was limited to 70 degrees, the abduction was limited to 45 degrees, and his internal rotation was limited to 45 degrees. The examiner found that during flare-ups the Veteran is unable to externally rotate his left shoulder at all although other movements were possible. Muscle strength testing was normal, and as noted above there was no evidence of ankylosis in the Veteran's left shoulder. The Veteran reported using a brace occasionally. In an October 2019 statement, the Veteran again described flare-ups that can last for many minutes up to half an hour manifested by complete numbness in the left arm preventing him from moving the arm until rested, and frequent clicking of the shoulder during movements which sometimes leads to painful feelings of the shoulder. He also noticed that he was prone to dislocations from time to time especially when lifting heavy items and sleeping on the shoulder. For the period of appeal prior to August 21, 2019, the Board finds that a rating in excess of 20 degrees is not warranted. The objective medical evidence from the time does not show that the range of motion of the Veteran's left shoulder was limited in such a way that it was midway between the side and shoulder level, and neither his flexion nor abduction was limited to 25 degrees from the side. However, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. From August 21, 2019, the Board finds that a disability rating of 30 percent is warranted. This is based on the fact that the Veteran's flare-ups severely impacted the limitation of motion of the Veteran's left shoulder, to the point that it substantially equated to a limitation of motion 25 degrees from the side. See also October 2019 statement of the Veteran. The most recent VA examiner considered the statements of the Veteran regarding symptomatology during flare-ups including the Veteran inability to move the arm for several minutes and was able to quantify the likely functional impairment when the Veteran was experiencing a flare-up from objective and subjective evidence. As of August 21, 2019, a rating of 30 degrees for a left shoulder disability is granted as the disability manifested as motion limited to 25 degrees from the side. A higher 40 percent disability rating is not warranted as while the Veteran has an inability to move his arm for a few minutes with flare-ups, the overall functional impairment shown by both the objective and objective evidence does not equate to unfavorable ankylosis with abduction limited to 25 degrees from the side as the most recent VA examiner indicated that it was external rotation that was affected during these flare-ups. Here, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the October 2017 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above. The October 2017 VA examination measured active and passive range of motion and range of motion on repetitive use testing as well as range of motion on weight-bearing and nonweight-bearing; the effect of pain on range of motion is described above. The Veteran endorsed flare-ups of his bilateral hips at the October 2017 VA examination, his reports of additional functional loss associated with the flare-ups as described above. Therefore, October 2017 VA examination is adequate for adjudication purposes. In reaching its conclusions, the Board acknowledges the Veteran's belief that his shoulder symptoms are more severe than is reflected by the currently assigned disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, supra. Nevertheless, the Board acknowledges the contentions of the Veteran and his attorney that a higher rating for his left shoulder disability is warranted due to symptoms such as numbness, tingling, popping, stiffness, pain, flare-ups, dislocation, and limited range of motion. Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his shoulder based on range of motion measurements. The Board has considered whether further staged rating under Hart, supra, is warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings is not warranted. Further, 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, supra. Additionally, the Board has considered whether an inferred claim for a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's current employment status is unknown. The Veteran has also not alleged, and the record does not suggest, that he is unable to obtain and maintain employment due solely to his service connected shoulder. As such, a Rice claim is not raised. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 20 percent prior to August 21, 2019, and for the assignment of a 30 percent rating, but not higher, beginning August 21, 2019 for his left shoulder disorder. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Entitlement to a Separate Compensable Rating for Recurrent Dislocation of the Left Shoulder In its September 2020 decision the Board, in pertinent part, granted a noncompensable rating under Diagnostic Code 5202 for the Veteran's left-shoulder disability. Diagnostic Code 5202 provides ratings for impairments of the humerus, and specific to the Veteran's case is the possible recurrent dislocation (also known as subluxation) of the scapulohumeral joint. In the June 2021 JMPR, it was noted that the Board should consider whether it was appropriate to assign a noncompensable rating for recurrent dislocation of the left shoulder without returning this matter to the AOJ for initial consideration. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); see also Bernard v. Brown, 4 Vet. App. 384 (1993). In this regard, however, the Board does find it appropriate for the Board to assign a separate rating for this manifestation of the Veteran's left shoulder disability as the matter was properly on appeal and before the Board. Esteban v. Brown, 6 Vet. App. 259 (1994). However, in the JMPR, the parties also instructed the Board to reconcile its finding that a rating under Diagnostic Code 5203 was noted warranted because there was no impairment of clavicle or scapula despite the August 2019 VA shoulder examination findings of a history of frequent episodes of left shoulder recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. The Board notes that Diagnostic Code 5203 addresses the impairment of the clavicle and/or scapula and encompasses dislocation of the joint. As such, this Diagnostic Code may also be applicable to the Veteran's case, given the extensive evidence in the claims file of frequent dislocations of the Veteran's left shoulder. Therefore, a remand is warranted to afford the Veteran every consideration. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion as to the nature and severity of the Veteran's recurrent dislocations of the left shoulder. The examiner is asked to respond to the following as to the left shoulder: (a.) Does the Veteran have impairment of the humerus manifested by infrequent episodes of recurrent dislocations and guarding of movement only at the shoulder level; and, (b.) Does the Veteran have impairment of the humerus manifested by frequent episodes of recurrent dislocations and guarding of arm movement; and, (c.) Does the Veteran have impairment of the clavicle or scapula manifested by dislocations separate and apart from any dislocations due to impairment of the humerus? The examiner must specifically address the Veteran's frequent statements of recurrent dislocations (such as his December 2019 correspondence), as well as relevant portions of the October 2017 and August 2919 VA examinations that indicate a history of left shoulder dislocations. 3. The AOJ shall readjudicate the Veteran's claim to the extent only as to whether further Diagnostic Codes, to include but not limited to Diagnostic Codes 5202 and 5203, are applicable to his left shoulder disability with consideration of the provisions of 38 C.F.R. § 4.14. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.