Citation Nr: 21012029 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-18 613A DATE: March 3, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the right shoulder (hereinafter 'right shoulder condition') prior to March 15, 2016 is denied. Entitlement to an effective date beginning March 15, 2016, but no earlier, for the grant of the evaluation of 20 percent for the right shoulder condition is granted. Entitlement to an evaluation in excess of 20 percent disabling for the right shoulder condition since March 15, 2016 is denied. FINDINGS OF FACT 1. Prior to March 15, 2016, the Veteran's right shoulder condition manifested with pain and limited motion. 2. In giving benefit of the doubt in favor of the Veteran, effective March 15, 2016, it was factually ascertainable that his right shoulder condition had worsened, manifested by a range of motion at or above the shoulder level with pain and flare-ups that limit activities above that level; but at no point was the right shoulder functionally limited to midway between the side and shoulder level or to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for the right shoulder condition prior to March 15, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5010-5201. 2. The criteria for an evaluation of 20 percent for the right shoulder condition were met beginning March 15, 2016, but no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, DC 5201. 3. The criteria for an evaluation in excess of 20 percent for the right shoulder condition since March 15, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1958 to August 1978. The Veteran testified before a Veterans Law Judge (VLJ) in March 2016, and the Board then remanded, in part, the above claims in an August 2016 decision. The Veteran then testified before the undersigned VLJ in September 2019. He was advised that the VLJ who had conducted the 2016 hearing had since retired from the Board, and his appeal would be decided by the undersigned. The claims file contains a transcript of both hearings. Thereafter, in a February 2020 Board decision, the Board, in part, remanded the higher rating claim for the right shoulder and remanded the service connection claim for hypertension. Subsequent to the 2020 Board remand development, in a January 2021 rating decision, the Veteran’s claim for service connection for hypertension was granted with a noncompensable rating, effective October 20, 2010 As such, this issue is no longer on appeal before the Board, though he is within the one year time-frame to file a disagreement with the decision if he so desires. As for the increased rating claim for the right shoulder condition, in the 2016 Board remand and the 2020 Board remand, the directives included requesting medical records, as the Veteran testified in both the 2016 and 2019 Board hearings that he had received extensive treatment. VA medical records were obtained and associated with the record, but the Veteran failed to respond to the letters sent in September 2016, August 2020 and September 2020 requesting information on his reported private treatment records. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), “[t]he duty to assist is not always a one-way street” and if the Veteran desires help with his claims, he must cooperate with VA’s efforts to assist him. As such, the RO has substantially complied with the Board’s remand instructions, so the Board may proceed to the merits of those claims. Stegall v. West, 11 Vet. App. 268, 271 (1998). To the extent the evidence is incomplete in any way, that is a direct result of the Veteran’s failure to authorize VA to request his private medical records or to submit them himself. Additionally, the Board notes the March 2018 supplemental statement of the case (SSOC) increased the right shoulder condition to 20 percent effective May 19, 2017, but the Rating Decision Codesheets following the 2018 SSOC included in the claims file (dated January 2018, July 2020, and January 2021) do not show the above-mentioned award of a 20 percent evaluation for the right shoulder, effective May 19, 2017. Thus, the RO must ensure that the latest Codesheet with the updated rating information is associated with the claims file. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Here, the Veteran argues he should have higher ratings for his right shoulder condition for the entire period on appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C. § § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. See 38 C.F.R. § § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § § 4.7. Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Evidence obtained during, or leading up to, the appeal period may indicate that the degree of disability increased or decreased during the pendency of the appeal. In such circumstances, VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending, and “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § § 4.45. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The rating criteria for evaluating disabilities of the shoulder, distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § § 4.69. The record on appeal establishes that the Veteran is ambidextrous; however, as discussed below, the highest evaluations the Veteran is entitled to are the same for both minor and major extremity. In this case, as noted above, the Veteran’s right shoulder condition is currently assigned a 10 percent evaluation effective December 2007 and a 20 percent evaluation effective May 19, 2017, and he is seeking higher ratings for the entire period on appeal. His disability has been rated in accordance with DC 5010-5201. 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. 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. See 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. See 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. The right shoulder disability had been rated 10 percent under diagnostic code 5010 because the limitation of motion was noncompensable under diagnostic code 5201. See 38 C.F.R. § 38 C.F.R. 4.71a, DCs 5003, 5010. Prior to the regulatory change, arthritis shown by X-ray studies was rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. See 38 C.F.R. § 4.71a, DCs 5003, 5010. Diagnostic Code 5010, for rating traumatic arthritis, directs that traumatic arthritis be rated under DC 5003, which states that 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. See 38 C.F.R. § 4.71a, DC 5010. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. Ratings for arthritis cannot be combined with ratings based on limitation of motion of the same joint. See 38 C.F.R. § 4.71a, DC 5010, Note 1. As of February 7, 2021, under the amended criteria, the rating criteria for DC 5010 will rate as to limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. In this case, the Veteran was rated under DC 5010 prior to February 2021, so the new criteria will not apply. Under DC 5201, prior to the regulatory change, for the minor and major arm, a 20 percent rating is warranted for limitation of arm motion to shoulder level; 20 percent for limitation midway between the side and shoulder level for the minor arm and 30 percent for the major arm, and; a maximum 30 percent rating for limitation of arm motion to 25 degrees from the side for the minor arm, and 40 percent for the major arm. See 38 C.F.R. § § 4.71a, Code 5201. As of February 7, 2021, under the amended criteria, the rating criteria for DC 5201 for the minor and major arm, a 20 percent rating is warranted for limitation of arm motion to shoulder level with flexion and/or abduction limited to 90 degrees; 20 percent for the minor arm and 30 percent for the major arm for limitation midway between the side and shoulder level with flexion and/or abduction limited to 45 degrees, and; a maximum 30 percent rating for the minor arm, and 40 percent for the major arm for limitation of arm motion with flexion and/or abduction limited to 25 degrees from the side. See 38 C.F.R. § § 4.71a, Code 5201. (The Board considered both the old regulations as well as the new regulations for the increased rating to determine the best possible rating for the Veteran. See below). In determining whether a Veteran has limitation of motion to shoulder level, it is necessary to consider reports of both forward flexion and abduction. Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Normal shoulder motion is defined as zero to 180 degrees of forward elevation (flexion), 0 to 180 degrees from the side of the body out to the side (abduction), and zero to 90 degrees of internal and external rotation. See 38 C.F.R. § § 4.71, Plate I. Further, the Veteran has not been shown to have ankylosis of the scapulohumeral articulation. 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 and will not be discussed herein. See 38 C.F.R. § 4.71a, DCs 5200, 5202. Upon review of the record, the Board finds that a 10 percent rating, but no higher, is appropriate for the period prior to March 15, 2016 and, after considering both the old and new regulations, a 20 percent rating, but no higher, is appropriate March 15, 2016, but no earlier. Prior to March 2016 For the initial period on appeal prior to February 2019, the Board finds that a rating greater than 10 percent is not warranted. In this respect, the Veteran’s disability was assessed by VA examiners and he received VA medical care during the period on appeal. First, in the January 2011 VA examination, the Veteran reported that his shoulder had weakness, giving away, stiffness, tenderness, and pain. Following a physical examination and discussion of the Veteran’s reported symptoms, it was noted that he had no edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding. There was also no ankylosis. The right shoulder range of motion was limited to 120 degrees flexion with normal findings in all other testing. There was no additional limitation of motion for the shoulder after repetition with no objective evidence of painful motion. His medical records also do not support a higher rating. Rather, the medical records available showed that he intermittently reported right shoulder pain, and a record from January 2009 showed he had slight pain with adduction on the right shoulder. There were no other records showing objective evidence of painful motion. As such, prior to March 2016, the competent medical evidence does not establish that the Veteran’s right shoulder condition was productive of limitation of motion compensable under the applicable code. Consideration has been given to an increased evaluation due to additional disability manifested by limitation of motion, or restriction of activity, or functional impairment caused by pain during periods of flare-up, or when the body part is used repeatedly over a period of time. Further, the Board acknowledges the July 2013 Form-9 statement that his condition had worsened since the last evaluation (to assume he was indicated the 2011 examination). However, he did not provide any specifics of how the condition had worsened or provide the alleged private medical records showing the condition had indeed worsened, and despite any reports of pain and worsening, his right shoulder condition still did not satisfy the criteria for a higher rating. There was simply no objective evidence that his motion was limited to midway between his side and shoulder level, which is required for a higher rating. Accordingly, the appeal seeking a rating greater than 10 percent for the period on appeal prior to March 15, 2016 is denied. In offering this conclusion, the Board is aware that the Veteran reported pain throughout this time period and asserted worsening. However, there is no evidence of such a severe disability picture as to warrant a rating higher than 10 percent prior to March 2016, as accompanying treatment records do not establish such. As noted above, the Veteran was afforded the opportunity to submit his private medical records, but he failed to respond. In sum, the evidence reflects that the severity of the symptoms and disability picture did not warrant a rating in excess of 10 percent for a right shoulder condition under DC 5010-5201 prior to March 15, 2016, and a higher rating is denied. In making this determination, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for the right shoulder condition, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Since March 15, 2016 The Board finds that beginning March 15, 2016, it was factually ascertainable that the Veteran’s right shoulder condition had increased in severity to more nearly approximate the criteria for a 20 percent evaluation. Specifically, the Veteran and his spouse provided sworn testimony at the March 15, 2016 Board hearing regarding, in part, his right shoulder condition and how it had worsened and caused additional functional impairment. For example, the Veteran testified that his right shoulder had degraded more over the years and that he could not use it, and it had gotten worse even more so recently. The Veteran’s wife also provided sworn testimony that he could not lift his arms to shower due to the right shoulder condition. This testimony was then corroborated by the May 2017 VA examination. During the examination, it was noted he had a diagnosis for degenerative arthritis in the right shoulder and that he reported attending physical therapy intermittently over the years. He discussed his bilateral shoulder pain and that he had flareups, and stated it was a constant, aching pain that gets worse at night or during cold or damp weather, and he is unable to sleep on either shoulder at night. He only discussed functional loss/impairment due to the left shoulder but not the right. His right shoulder flexion was limited to 120 degrees, and abduction was limited to 90 degrees, and there was pain noted on examination; the examiner noted that this causes functional loss, and there was objective evidence of tenderness at the shoulder joint with crepitus. He had reduced muscle strength of 4/5. The examiner noted the Veteran had generalized muscle wasting of the bilateral arms and muscle atrophy but explicitly stated this is not due to the service-connected shoulder condition, but is related to the radiculopathy of the bilateral arms from his neck condition (all of which is currently service-connected and separately rated). There was no ankylosis. His rotator cuff testing in the right shoulder was all positive for tendinopathy or tear, but NO loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus, and NO malunion of the humerus with moderate or marked deformity. The Veteran’s VA medical records were obtained and associated with the claims file, which showed continued right shoulder degenerative arthritis, but no specific treatment or indication of worsening was shown, nor has the Veteran alleged worsening. Further, in the September 2019 Board hearing, the Veteran did not argue worsening of the right shoulder, but rather argued the grant of 20 percent should be earlier than the 2017 effective date, and again stated his medical records would show as such. Although the Veteran was afforded another opportunity to provide those private records in a second Board remand, as noted above, he failed to respond or return those records himself. That notwithstanding, based on the sworn testimony he and his wife provided in the March 2016 Board hearing, and in giving him the benefit of the doubt, the Board is granting the 20 percent evaluation effective date to be March 15, 2016. There are no other records indicating an earlier date is warranted. As such, given the above, the Board concludes that a 20 percent rating, but no higher, under DC 5201 beginning March 15, 2016, but no earlier, is warranted. As noted above, the regulations for rating musculoskeletal conditions changed effective February 2021; but at no point on appeal did the Veteran’s shoulder condition cause limitation of motion more severe than 90 degrees. The evidence reflects that the Veteran’s right shoulder condition had increased in severity since the initial rating and that he experiences additional loss of motion. The Board finds that these symptoms more approximately reflect symptoms commensurate with a 20 percent disability rating under both the old and new regulations. To any extent that the Veteran asserts that his right shoulder condition warrants the higher ratings which indicate further limited motion, he is not competent to opine on those complex medical questions. Additionally, the Board has remanded the appeal twice to afford the Veteran the opportunity to provide the private medical records he stated show worsening symptoms than as shown above, but he has failed to respond or provide those records himself. In sum, the evidence reflects that the severity of the symptoms and disability picture does not warrant a rating in excess of 20 percent for a right shoulder condition under DC 5010-5201, and a higher rating is denied, but, in giving benefit of the doubt in favor of the Veteran, the 20 percent rating earlier effective date of March 15, 2016 is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.