Citation Nr: 21011206 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 18-15 999 DATE: March 1, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected right clavicle fracture with right shoulder degenerative changes is denied. FINDING OF FACT Throughout the pendency of this claim, the Veteran’s right shoulder disability was manifested, at worst, by limitation of motion of the arm to 60 degrees, with consideration of functional loss on repeated use including during flare-ups. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 20 percent for service-connected right clavicle fracture with right shoulder degenerative changes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1958 to August 1959 and from August 1959 to August 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that awarded service connection for fracture, right clavicle an assigned an evaluation of 0 percent under Diagnostic Code 5201, effective January 20, 2016. The RO also denied service connection for osteoarthritis of the right shoulder. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2019. A transcript is of record. In November 2019, the Board granted service connection for degenerative changes (osteoarthritis) of the right shoulder and remanded the claim for a higher rating for a fracture of the right clavicle for further development. In May 2020, the RO implemented the Board’s award of service connection for degenerative changes of the right shoulder, recharacterizing the Veteran’s service-connected right shoulder disability as right clavicle fracture with right shoulder degenerative changes, and assigned an increased initial rating of 20 percent under DC 5201, effective January 20, 2016. 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected right clavicle fracture with right shoulder degenerative changes is denied. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is in receipt of an initial 20 percent disability rating for the service-connected right (dominant) shoulder disability under DC 5201. 38 C.F.R. § 4.71a. 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. 76453 (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). Disorders of the shoulders are rated under DCs 5200 through DCs 5203 of 38 C.F.R. § 4.71a. The above-referenced DC provide for different ratings in certain instances depending on whether the shoulder involved is the major or minor joint. A July 2020 VA examination report reflects that the Veteran is right hand dominant. Diagnostic Code 5203 provides that impairment of the clavicle or scapula is to be rated as dislocation, nonunion, or malunion; or rate on impairment of function of the contiguous joint. DC 5203 does not provide for a rating in excess of the current 20 percent disability rating. Concerning impairment of function of the contiguous joint, under DC 5201 limitation of motion of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major extremity. When motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5202 provides for a 20 percent rating for recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level; a 30 percent rating for recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes of guarding of all arm movements; a 50 percent rating for fibrous union of the humerus; a 60 percent rating for nonunion of the humerus; and an 80 percent rating for loss of head of the humerus of the major arm. 38 C.F.R. § 4.71a. Under DC 5200, a 40 percent rating is warranted in instances of intermediate ankylosis between favorable and unfavorable. A 50 percent rating is warranted where there is unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5200. The revised schedule, in effect as of February 7, 2021, contemplating limitation of motion of the arm (major extremity) under DC 5201, provides that a 20 percent rating is assigned for limitation of the arm at shoulder level (flexion and/or abduction limited to 90 degrees; a 30 percent rating is assigned for limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees); and a 40 percent rating is assigned for flexion and/or abduction of the arm limited to 25 degrees from the side. Diagnostic Code 5202 was unchanged, save for clarifying that “shoulder level” means flexion and/or abduction limited to 90 degrees (recurrent dislocation at scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level), required for the assignment of a 20 percent rating. No revisions were made DCs 5200 and 5203. The Board emphasizes that the cited revisions do not contain any outcome-determinative changes that impact the Veteran’s service-connected right shoulder disability. Instead, the revisions clarify that “shoulder level” means 90 degrees and “midway between the side and shoulder level” means 45 degrees, information which was previously available and garnered from 38 C.F.R. § 4.71a, Plate I. As such, the Board finds there is no prejudice to the Veteran in the Board’s consideration of the amended regulations in this appeal. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); 38 C.F.R. § 20.904(d)(2). Limitation of motion under DC 5201 may be compensated based on limitation of abduction or limitation of flexion - the two planes of movement involving lifting the arm from the side, whichever would afford the higher rating. Yonek v. Shinseki, 722 F.3d, 1355, 1358-59 (2013) (citing Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003)). However, separate ratings for both limitation of abduction and flexion are not available under this diagnostic code. Id. (holding that "the plain language of [DC] 5201... allows only a single rating for 'limitation of motion of' an arm"); cf. Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (holding that within a single diagnostic code, a claimant is not entitled to more than one rating for a given disability unless the diagnostic code expressly provides otherwise). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the DC's applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period on appeal from January 20, 2016, the criteria for an initial rating in excess of 20 percent for the right shoulder disability have not been met or more nearly approximated. Throughout the initial rating period on appeal, the right shoulder disability has been manifested, at worst, by limitation of motion of the arm to 60 degrees, with consideration of functional loss on repeated use including during flare-ups, as explained below. The Veteran stated that he has chronic pain in his right shoulder. See April 2017 Statement in Support of Claim. He stated that he has reduced range of motion and reduced function in his right arm due to his right shoulder disability. See id. The Veteran’s private physician submitted a Disability Benefits Questionnaire (DBQ) on his behalf in January 2017, where the physician stated that the Veteran endorsed flare ups which made him sore. The private physician did not perform range of motion (ROM) testing, as no goniometer was available, but noted that ROM movements on both active and passive motion were painful, and this pain contributed to functional loss. The private physician stated that the Veteran had less movement than normal, pain on movement, and deformity in his right shoulder; he also noted that the Veteran had greater difficulty with activities of daily living. The private physician performed muscle strength testing on the Veteran, rating both his forward flexion and abduction 4/5. The private physician noted palpable right clavicle fullness where the fracture occurred and found arthritis in an x-ray. The x-ray showed no acute fracture or malalignment; a remote deformity of the right mid to distal clavicle; and chronic degenerative changes of the acromioclavicular (AC) joint. The physician stated that the Veteran’s right shoulder disability did not impact his ability to perform any type of occupational task. The Veteran received a VA shoulder examination in August 2017. He reported that cold weather, pushing the lawnmower, and loading his wife’s oxygen tank aggravated his right shoulder disability. He stated that he retired in June 1991, but that his right shoulder disability did not limit his ability to perform his job, including assembly work, driving, and sanitary work. He did not report any functional impairment and did not endorse flare ups. His range of motion was normal, with full flexion (180 degrees), abduction (180 degrees), external rotation (90 degrees), and internal rotation (90 degrees). No pain was noted on ROM testing, no pain was noted with weight bearing, and no localized tenderness or pain on palpitation of the joint was noted. He was also able to perform repetitive testing, with no additional functional loss or ROM after three repetitions. His muscle strength for both forward flexion and abduction was rated 5/5. X-ray testing was performed, showing remote deformity of the right mid to distal clavicle, as well as chronic degenerative changes of the acromioclavicular (AC) joint. His deformity present in the area of fracture was not found to be disabling. No functional impact was found. Muscle atrophy was not found. No ankylosis was found. Flail shoulder, false flail shoulder, or fibrous union of the humerus was not found. No malunion of the humerus with moderate or marked deformity was found. The Veteran submitted a letter from his private physician, who stated that the Veteran’s right shoulder was painful and moderately limited his ROM; the private physician also stated that the pain affects the Veteran’s daily activities of living including dressing, going to the bathroom, shoveling snow, and mowing his lawn. See November 2017 Private Physician Letter. The private physician found mal-union, as well as palpable nodule where the mal-union existed from the Veteran’s fracture. In April 2019, the Veteran testified at a hearing before the Board, where he stated that he had constant pain in his right shoulder and that the pain never fully goes away. He stated that he has trouble doing many activities, including mowing his lawn and shoveling snow, and that his neighbor’s children help him complete these tasks. He testified that he can lift his right arm up to shoulder level, but no higher without pain; he stated that he cannot scratch his left ear with his right arm and has trouble showering with his right arm. He testified that his right shoulder will throb if he exerts it, and that he uses a heating pad to alleviate the pain. He stated that he tries to sleep on his back, and if he inadvertently rolls onto his side in his sleep, he will wake up sore and have a painful day. Finally, he stated that sometimes when he lays down for relaxation purposes, he will slowly experience pain on his collarbone at the joint. The Veteran received another VA shoulder examination in July 2020. He reported flare-ups occurring 1-2 times per week for 2-3 hours, rating the severity 5-6/10; the impact of his flare ups was increased pain with decreased ROM with repeated use, overhead use and heavy lifting. Functional impairment of the joint was noted. Initial ROM of the right shoulder was found to be abnormal. Flexion was 0 to 110 degrees. Abduction was 0 to 110 degrees. External rotation was 0 to 30 degrees. Internal rotation was 0 to 30 degrees. The initial abnormal ROM was not found to contribute to functional loss. Pain was observed on flexion, abduction, external rotation, and internal rotation and was found to contribute to functional loss. There was objective evidence of localized tenderness or pain on palpitation of the anterior ac joint and distal clavicle, described as sharp, with the severity rated at 3-4/10 at rest and 6-7/10 after ROM. There was evidence of pain on weightbearing, and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions. Additional functional loss or ROM loss from repetition was noted. After 3 repetitions, flexion was 0 to 80 degrees. Abduction was 0 to 80 degrees. External rotation was 0 to 20 degrees. Internal rotation was 0 to 20 degrees. Pain and lack of endurance contributed to functional loss. The Veteran was not examined after repeated use over time, but the examiner estimated ROM flexion 0 to 75 degrees, abduction 0 to 75 degrees, external rotation 0 to 20 degrees, and internal rotation 0 to 20 degrees. Pain, weakness, fatigability, and incoordination were found to significantly limit functional ability with repeated use over a period of time. The Veteran was not examined during a flare up, but the examiner estimated ROM flexion 0 to 60 degrees, abduction 0 to 60 degrees, external rotation 0 to 20 degrees, and internal rotation 0 to 20 degrees. Muscle strength testing was rated 4/5 strength for flexion and 4/5 strength for abduction. Muscle atrophy was found in the right subscapular, which the VA examiner stated was presented as an obvious deformity of the subscapularis and was asymmetrical when compared to the left posterior shoulder; the examiner found that it was consistent with decreased ROM for the right shoulder. No ankylosis was found. A rotator cuff condition was noted. No instability, dislocation, or labral pathology of the shoulder was found. A clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition was found, described as a poorly healed fracture of the right mid to distal clavicle. The clavicle condition was found to affect ROM of the shoulder, cause tenderness of the palpitation of the right AC joint, and his right side was positive for pain on the cross-body abduction test. Flail shoulder, false flail shoulder, or fibrous union of the humerus was not found. No malunion of the humerus with moderate or marked deformity was found. The examiner noted the Veteran’s January 2017 x-ray, which showed a remote deformity of his right mid to distal clavicle with chronic degenerative changes of the AC joint. The Veteran’s right shoulder disability was found to have functional impact, resulting in decreased ROM and increased pain with heavy lifting and repeated overhead use. The examiner noted objective evidence of pain on passive ROM and non-weight bearing ROM. Based on the foregoing evidence, the Board finds, for the entire rating period on appeal from January 20, 2016, the criteria for an initial disability rating in excess of 20 percent under DC 5201 for the right shoulder disability have not been met or more nearly approximated. The evidence throughout the rating period shows the right shoulder disability did not manifest in limitation of the right arm midway between side and shoulder level (i.e., to 45 degrees), the criteria for a 30 percent rating under DC 5201). At worst, with consideration of functional loss on repeated use including during flare-ups, the Veteran had an estimated ROM during a flare up of forward flexion of his right shoulder limited to 60 degrees and abduction limited to 60 degrees, which exceeds flexion/abduction limited to 45 degrees by 15 degrees, as is required for a 30 percent rating under DC 5201. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Thus, the criteria for a 30 percent rating have not been met or more nearly approximated at any time during the entire appellate period. See 38 C.F.R. § 4.7. Further, the Veteran's right shoulder disability has not been shown to be manifested by loss of head of the humerus, nonunion of the humerus, or recurrent dislocation of the humerus at the scapulohumeral joint. Accordingly, a higher rating under Diagnostic Code 5202 is not applicable. Id. As there have been no findings of ankylosis of the right shoulder, a higher rating under DC 5200 is not warranted. See 38 C.F.R. § 4.71a, DC 5200. Additionally, the Veteran is already in receipt of a 20 percent rating for his right shoulder disorder, which is the maximum rating available for impairment of the clavicle or scapula under DC 5203. For the foregoing reasons, the Board finds the preponderance of the evidence is against assignment of an initial disability rating in excess of 20 percent for the Veteran’s right shoulder disability for the entire rating period on appeal, under both the old and revised rating criteria. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.