Citation Nr: 21012860 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 12-13 055 DATE: March 5, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee is denied. Entitlement to a disability rating in excess of 20 percent prior to February 7, 2017, for right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis is denied. The reduction of the disability rating assigned to the Veteran’s right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis from 20 percent to 30 percent, effective September 16, 2019, was improper and is void ab initio. Entitlement to a disability rating in excess of 30 percent from February 7, 2017, for right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s right knee disability has been manifested by painful motion. It has not been manifested by extension limited to 45 degrees, flexion limited to 45 degrees, instability, or ankylosis. 2. Prior to February 7, 2017, the Veteran’s right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis was manifested by abduction limited to 90 degrees. It was not manifested by flexion or abduction limited to 45 degrees. 3. The evidence does not reflect that the Veteran’s right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis has improved regarding his ability to function under the ordinary conditions of life and work. 4. From February 7, 2017, the Veteran’s right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis was manifested by limitation of motion midway between the side and shoulder level. It was not manifested by flexion and/or abduction limited to 25 degrees from the side or ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5210. 2. The criteria for entitlement to a disability rating in excess of 20 percent prior to February 7, 2017, for right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 3. The rating reduction from 30 percent to 20 percent, effective September 16, 2019, for right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. § 3.344. 4. The criteria for entitlement to a disability rating in excess of 30 percent from February 7, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to January 1996. He appeals a February 2010 rating decision denying entitlement to service connection for a left knee disability and an increased rating for a right knee disability. He also appeals an October 2014 rating decision denying entitlement to an increased rating for a right shoulder disability. The Board notes that entitlement to service connection for a left knee disability was granted during pendency of appeal. As this represents a full grant of benefits sought on appeal, that issue is no longer before the Board. An increased rating of 20 percent prior to February 7, 2017, and 30 percent thereafter was also granted for the Veteran’s right shoulder disability. However, as this does not represent a full grant of benefits sought on appeal, the issue of entitlement to an increased rating for a right shoulder disability is still before the Board. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, “[w]here 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.” 38 C.F.R. § 4.7. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 1. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee. The Veteran requests a rating higher than the 10 percent he currently receives for his right knee disability. Specifically, the Veteran reports pain and a popping sound in the knee. After review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted at any time during the appeal. It should be noted that, during the course of this appeal, the schedular criteria for evaluating the knee have been amended. Specifically, the criteria pertaining to (1) knee instability and (2) impairment of the tibia and fibula under 38 C.F.R. § 4.71a, Diagnostic Codes (DC’s) 5257 and 5262 respectively, was amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, 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; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's right knee disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. In this case, the amended criteria are actually more limiting than the pre-amended criteria. Moreover, review of the medical evidence does not reveal right knee instability at any time during the period on appeal. As such, a disability rating is not available for right knee instability under either the old or new rating criteria. Similarly, the medical evidence does not show ankylosis, meniscus injury, or genu recurvatum. Accordingly, disability ratings are not available under DC’s 5256, 5258, 5259, or 5263. Based on the foregoing, the Veteran’s right knee is evaluated based limitation of motion, to include pain, under DC’s 5260 and 5261. In order to warrant a rating in excess of 10 percent, the evidence must show: • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DCs 5260 and 5261, respectively); or • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256) 38 C.F.R. § 4.71a. The Veteran was afforded VA examinations in January 2010. Flexion was measured to 140 degrees and full extension was observed. Pain was noted on active motion, but no further details were provided. Pain was also noted following repetitive motion but did not result in additional limitations. The Veteran argues that the examiner had full control of his legs and thus, the range of motion measurements from the examination are inaccurate. At a subsequent VA examination in February 2017, the Veteran’s initial range of motion measurements were flexion limited to 90 degrees with full extension. The Veteran reported pain with flare-ups on both flexion and extension, but the examiner refused to opine as to whether this led to additional functional loss. As a result, the examination is inadequate for rating purposes and the Veteran was afforded another VA examination in September 2019. On this occasion, initial range of motion was measured at full flexion and extension. The Veteran reported flare-ups and pain on flexion. However, the examiner found no additional functional loss resulted. Also, no additional functional loss was reported after repetitive use or on weight bearing. In light of the medical evidence of record, the Board finds that a rating in excess of 10 percent should not be granted. The only limitation of motion attributable to the Veteran’s disability has been pain on flexion and extension. However, his limitation of flexion or extension has not resulted in a compensable level of limitation (flexion limited to 90 degrees at most), even considering the Veteran’s own reports of limitation due to his pain. As the pain itself has not resulted in a compensable rating, the 10 percent rating based on painful motion is the most appropriate rating at this time. 38 C.F.R. §§ 4.40, 4.45. In summation, the Board finds that a 10 percent rating based on painful motion is the most that is supported under the rating criteria. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim, that doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 20 percent prior to February 7, 2017, for right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis. The Veteran is in receipt of a 20 percent rating prior to February 7, 2017, under 38 C.F.R. § 4.71a, DC 5201, for his right shoulder disability. He contends that a higher rating is warranted. After review of the evidence, the Board finds that a rating in excess of 20 percent for this period is not warranted. Under DC 5201, flexion and/or abduction limited to 25 degrees from the side warrants a 40 percent rating on the major side and a 30 percent rating on the minor side. Limitation of motion midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 30 percent rating for the major side and 20 percent for the minor side. Finally, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating. At his October 2014 VA examination, the Veteran reported that a year and a half of physical therapy had resulted in significant improvement regarding pain and range of motion. However, the improvement did not last. Prior to the therapy he had intermittent flare-ups whereas he now had constant, throbbing pain. He reported the pain began when attempting to raise his arm above 90 degrees. The examiner found no additional functional loss after repetitive use testing. In addition, no ankylosis or impairment of the clavicle/scapula or humerus was found. No other medical evidence during the period indicates that the Veteran’s right shoulder range of motion was limited to midway between his side and shoulder. Importantly, the veteran himself asserted that painful motion did not begin until he raised his arm to shoulder height. As such, a rating in excess of 20 percent for the appeal period is not warranted and the claim is denied to that extent. 3. Propriety of the rating reduction from 30 percent to 20 percent, effective September 16, 2019, for right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis. In the midst of the Veteran’s pending increased rating claim for his right shoulder disability, the RO reduced the disability rating assigned from 30 percent to 20 percent, effective September 16, 2019. After review of the evidence, the Board finds the rating reduction improper. Two findings are necessary for any reduction to be proper: (1) an improvement in the disability has actually occurred; and, (2) that improvement reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). The Veteran was afforded a VA examination in February 2017. He complained of intermittent pain that increased with overhead activities. Although he reported flare-ups, the examiner refused to opine as to whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. Consequently, it is unclear to what extent the Veteran’s flare-ups resulted in functional loss. The examiner did note that the Veteran suffered from hypertrophic changes in his acromioclavicular joint which further affected his range of motion. Based on the examination, the Veteran was granted an increased rating of 30 percent effective February 7, 2017, the date of the VA examination. The Veteran was afforded another VA examination in September 2019. He reported flare-ups during overhead activities which resulted in a pain level of 7 out of 10. He further reported that he had difficulty raising his arm above shoulder level. His initial range of motion was measured at 90 degrees of abduction. The examiner noted pain during flare-ups and with repeated use over time but noted no additional functional loss in terms of range of motion. However, such a finding does not indicate that the Veteran’s ability to function under the ordinary conditions of life and work has improved. The Veteran has continuously maintained that his ability to lift objects and raise his right arm has resulted in increasing pain over time. In fact, in addition to ever increasing pain, records show that physical therapy has not resulted in sustained improvement. In summation, the record simply does not show that the Veteran’s right shoulder disability has improved such that he is better able to function under the ordinary conditions of life and work. Accordingly, the reduction from 30 percent to 20 percent for the Veteran’s right shoulder disability is found to be void ab initio, and the 30 percent rating is restored. 4. Entitlement to a disability rating in excess of 30 percent from February 7, 2017, for right shoulder rotator cuff tear with tendonitis and acromioclavicular joint arthritis. Based on the above Order, the Veteran is in receipt of a 30 percent rating effective February 7, 2017. After review of the evidence, the Board finds that a higher rating than 30 percent is not warranted. To warrant a 40 percent rating, the evidence must show ankylosis, impairment of the humerus, or flexion and/or abduction limited to 25 degrees from the side. As mentioned, no evidence of ankylosis or humerus impairment has been shown. Moreover, neither examination of the Veteran nor his own statements indicate that his range of motion is limited to 25 degrees from the side. In fact, the Veteran has never specifically asserted that his painful motion begins at less than 90 degrees of abduction. Range of motion measurements from his September 2019 VA examination tend to confirm that the Veteran’s right shoulder pain results in limitation of motion closer to shoulder level than limited to 25 degrees from the side. Hence, the criteria for a rating in excess of 30 percent has not been met. In summation, the medical and lay evidence of record demonstrates that, at most, the Veteran’s right shoulder disability results in limitation of motion midway between the side and shoulder level. As such, a rating in excess of 30 percent is not warranted and the claim is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel