Citation Nr: 21013145 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-00 469A DATE: March 8, 2021 ORDER For the rating period prior to January 16, 2020, a rating of 20 percent, but no higher, for residuals of a left clavicle fracture, is granted. Beginning January 16, 2020, a rating of 30 percent, but no higher, for residuals of a left clavicle fracture, is granted. FINDINGS OF FACT 1. The Veteran is left-hand dominant. 2. For the rating period prior to January 16, 2020, the Veteran’s left shoulder disability to include during flare-ups, was most closely productive of limitation of motion of the arm to shoulder level. 3. Beginning January 16, 2020, the Veteran’s left shoulder disability to include during flare-ups, is more closely productive of limitation of motion of the arm midway between side and shoulder level. CONCLUSIONS OF LAW 1. For the rating period prior to January 16, 2020, the criteria for a rating of 20 percent, but no higher, for a left shoulder disability are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5201 (2020). 2. Beginning January 16, 2020, the criteria for a rating of 30 percent, but no higher, for a left shoulder disability are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5201 (2020); 85 Fed. Reg. 76462 (Feb 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decision issued in December 2013 by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in November 2018; a transcript of the hearing is of record. The issue regarding a higher rating for the left shoulder disability was previously remanded by the Board in March 2019 in order to obtain a new VA shoulder examination. Further, the Board remanded the claim for service connection for sarcoidosis, which was subsequently granted by RO in a July 2020 rating decision. Accordingly, the issue for entitlement to service connection for sarcoidosis is no longer before the Board for consideration. The July 2020 rating decision also granted a 20 percent rating for the left shoulder disability effective January 16, 2020. Nonetheless, as that increase does not represent a full grant of the benefits sought, the Veteran’s appeal is not abrogated, and the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Left Shoulder Disability Rating—Laws and Analysis Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 ; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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). Where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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.”). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s left shoulder disability (residuals of a clavicle fracture) is rated under Diagnostic Code 5203-5202. The use of a hyphenated Diagnostic Codes indicates the rating is based on a residual condition. 38 C.F.R. § 4.27. Effective February 7, 2021, VA’s Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When 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. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021.  Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied.  As the Veteran’s claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The Board notes that changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5201 were not to the rating schedule itself, but added clarifying range of motion limitations in specific degrees. In this regard, under Diagnostic Code 5201, effective prior to February 7, 2021, the major shoulder was rated as follows: limitation of motion to shoulder level warranted a 20 percent rating; motion limited midway between the side and shoulder level warranted a 30 percent rating; and motion limited to 25 degrees or less from the side was rated at 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under the revised rating criteria, effective February 7, 2021, clarification was provided as to limitation of motion to shoulder level (i. e., flexion and/or abduction limited to 90 degrees), and limitation of motion midway between side and shoulder level (i. e., flexion and/or abduction limited to 45 degrees). See 85 Fed. Reg. 76462 (Feb 7, 2021). The evidence of record demonstrates that the Veteran is left-hand dominant. See VA examination reports dated in 1971 and 2013. Therefore, his left shoulder is considered his major extremity. See 38 C.F.R. § 4.69 (2020). The relevant evidence during the appeal period includes a September 2013 VA examination. At that time, the Veteran reported having dull pain almost daily. Range of motion testing showed flexion and abduction limited to 160 degrees, with pain starting at 150 degrees. The Veteran was able to perform repetitive use testing with no additional loss of motion. He was also found to have functional impairment due to less movement than normal and pain on movement. Muscle strength was normal and there was no ankylosis of the shoulder joint. In a December 2014 clarifying medical opinion, the examiner indicated that an opinion could not be provided regarding additional loss of motion during flare-ups without resorting to speculation as this would require the Veteran to be examined during a flare-up. During the November 2018 Board hearing, the Veteran stated that he was limited in his shoulder mobility to approximately 90 degrees. See id at pg. 20. Pursuant to the Board’s remand, the Veteran was afforded another VA examination on January 16, 2020. During the evaluation, the Veteran reported pain and crepitus, but denied any dislocations. Range of motion testing of the left shoulder revealed flexion limited to 130 degrees and abduction limited to 90 degrees. The Veteran was found to have difficulties with pressure on the shoulder, overhead lifting, reaching, and pushing or pulling. With repeated use over time and during flare-ups, the examiner estimated that the Veteran’s left shoulder would be limited to 110 degrees in flexion and 70 degrees in abduction. The Veteran also submitted private treatment records from the Apple Healthcare Group dated in July 2020. The Veteran reported severe symptoms on the date of examination and indicated that he had sharp pain and tightness in the left shoulder. Range of motion testing showed abduction limited to 45 degrees and flexion limited to 90 degrees. As it pertains to the rating period prior to January 16, 2020, the Board finds that the conclusions of the September 2013 VA examiner (to include the medical opinion dated in December 2014) to be of little probative value as the examiner did not properly provide measurements regarding additional range of motion loss due to flare ups. Sharp v. Shinseki, 29 Vet. App. 26 (2017). Moreover, the evidence prior to January 2020 shows that the Veteran’s left shoulder motion was limited to approximately 90 degrees (i. e., shoulder level). See November 2018 Board Hearing Transcript at pg. 20. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, for the rating period prior to January 16, 2020, the Veteran’s left shoulder disability to include during flare-ups, is most closely productive of limitation of motion of the arm to shoulder level. Accordingly, a 20 percent rating for the left should disability is warranted for the appeal period prior to January 16, 2020. The Board next finds that a rating in excess of 20 percent is not warranted for the rating period prior to January 16, 2020. Even considering pain, the Veteran was able to flex the left shoulder to at least 90 degrees. See September 2013 VA examination (range of motion testing showed flexion and abduction limited to 160 degrees, with pain starting at 150 degrees); see also November 2018 Board hearing transcript (Veteran stated that he was limited in his shoulder mobility to approximately 90 degrees). In sum, the Board finds that the lay and medical evidence of record prior to January 16, 2020 does not more nearly approximate limitation of motion midway between the side and shoulder level as contemplated by a 30 percent rating under Diagnostic Code 5201. Further, there is no evidence that the Veteran has ankylosis of the left shoulder or loss of head, nonunion, malunion, fibrous union or dislocation of the left humerus. As such, DC 5200 (ankylosis) and DC 5202 (other impairment of the humerus) are not for application in this case. DC 5203 for impairment of the clavicle or scapula allows for a maximum 20 percent rating; as such, a higher rating under this Code is not permitted. As it pertains to the rating period beginning January 16, 2020, the Board finds that the Veteran’s left shoulder disability more nearly approximates the rating criteria for a 30 percent rating under DC 5201. The January 2020 VA examination report found that abduction was limited to 70 degrees during flare-ups, which is less than at shoulder level. Further, the Veteran’s left shoulder was limited to abduction to 45 degrees, which is midway between the side and shoulder level. See July 2020 private treatment record. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a 30 percent rating is warranted beginning January 16, 2020. The Board however finds that a rating in excess of 30 percent is not warranted beginning January 16, 2020. The evidence of record does not show that the Veteran’s left shoulder disability more nearly approximates limitation of motion to 25 degrees or less from the side as required by the higher 40 percent rating. Even with repeated use over time and during flare-ups, the Veteran’s left shoulder disability was found to be limited to 110 degrees in flexion and 70 degrees in abduction. See January 2020 VA examination report. As such, a higher rating under DC 5201 is not warranted. Further, as noted above, there is no evidence that the Veteran has ankylosis of the left shoulder or loss of head, nonunion, malunion, fibrous union or dislocation of the left humerus. As such, DC 5200 (ankylosis) and DC 5202 (other impairment of the humerus) are not for application in this case. DC 5203 for impairment of the clavicle or scapula allows for a maximum 20 percent rating; as such, a higher rating under this Code is not permitted. Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence of record indicates that the Veteran is retired. See e. g., November 2018 VA treatment record. The Veteran does not contend, and the evidence does not otherwise show, that his disabilities render him unemployable. Thus, entitlement to a TDIU is not for consideration at this time. 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, 28 Vet. App. 366, 371 (2017). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.