Citation Nr: 21013205 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-12 674 DATE: March 9, 2021 ORDER An initial disability rating in excess of 20 percent for a left shoulder (minor) disability is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s left shoulder disability manifested in limitation of motion to, at worst, midway between the side and shoulder level, or flexion/abduction limited to 45 degrees. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5019-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1992 to March 2013. A Board hearing was held before the undersigned Veterans Law Judge in August 2018, and a transcript of the hearing is of record. Historically, the Veteran was awarded service connection for a left shoulder (minor) disability with an evaluation of 10 percent. In a February 2019 Board decision, the Veteran’s initial evaluation for his left shoulder disability was increased to 20 percent, but no higher, based on limitation of motion to the shoulder level due to pain. In October 2019, the Court of Appeals for Veterans Claims (Court) vacated and remanded that part of the February 2019 Board decision that denied entitlement to a disability rating in excess of 20 percent for the Veteran’s left shoulder disability. See October 2019 Joint Motion for Partial Remand (JMPR). In April 2020, the Board remanded the Veteran’s increased rating claim to afford the Veteran a new VA shoulder examination in light of the findings of the October 2019 JMPR and the Veteran’s report that his left shoulder disability had increased in severity since he was last afforded a VA examination in November 2014. The agency of original jurisdiction (AOJ) has substantially complied with the April 2020 remand directives, and the Board finds the evidence of record is sufficient to proceed with a decision on the Veteran’s claim for a disability rating in excess of 20 percent for his left shoulder disability. The Veteran seeks the maximum benefit allowed by law and regulation, to include consideration of an extraschedular rating. See February 2021 Appellate Brief. The Veteran’s representative contends that the severity of the Veteran’s left shoulder disability more closely approximates the criteria for a 30 percent disability rating under Diagnostic Code 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. 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. Prior to the regulatory change, Diagnostic Code 5201 provided a 20 percent disability rating for a major or minor extremity where range of motion is limited to lifting an arm to shoulder level. The Veteran reported he is right-handed; therefore, his left shoulder and arm are to be addressed as the minor arm. See August 2018 Board hearing transcript. Additionally, a 20 percent evaluation is provided for a minor extremity where range of motion of the arm is limited to midway between a Veteran’s side and shoulder level. Diagnostic Code 5201 provides a maximum 30 percent evaluation for a minor extremity where range of motion is limited to 25 degrees from the side. Diagnostic Code 5201 does not provide separate ratings for limitations on flexion, extension, abduction and rotation, but rather permits only a single rating for limitation of motion of an arm. See Yonek v. Shinseki, 722 F.3d 1355, 1359 (Fed. Cir. 2013). As of February 7, 2021, under Diagnostic Code 5201, the amended criteria provides that a 20 percent disability rating is warranted for a major or minor extremity where range of motion is limited to shoulder level, and clarified that loss of motion includes flexion or abduction limited to 90 degrees. A 20 percent evaluation is also warranted for a minor extremity where range of motion is limited to midway between the side and shoulder level, and clarified that loss of motion includes flexion or abduction limited to 45 degrees. A maximum 30 percent evaluation is warranted for a minor extremity where range of motion is limited to 25 degrees from the side. In reviewing the evidence of record, the Veteran was afforded a VA shoulder examination in May 2013, and his left shoulder disability was diagnosed as acromioclavicular (AC) arthritis and glenohumeral arthritis with chondromalacia. The Veteran reported developing pain with almost any type of use of his left shoulder. See also July 2014 private treatment records. On initial range of motion testing, the Veteran demonstrated forward flexion to 180 degrees, with objective evidence of painful motion beginning at 150 degrees. Left shoulder abduction was measured to 180 degrees, with objective evidence of painful motion beginning at 140 degrees. The examiner reported the Veteran did not have additional limitation in range of motion or functional loss following repetitive-use testing. The examiner reported the Veteran did not demonstrate localized tenderness, pain on palpation, or guarding of the left shoulder. The examiner reported muscle strength testing of the left shoulder was normal. The examiner reported the Veteran did not have ankylosis of the left shoulder, a rotator cuff condition, instability or dislocation, or any other clavicle or scapula condition. In his August 2014 VA Form 21-4138, the Veteran reported it was painful for him to elevate his left arm at or above the shoulder level. The Veteran stated he was unable to perform simple tasks such as changing a light bulb with his left arm, and that reaching into a cupboard or turning his car steering wheel while driving resulted in pain and/or discomfort. The Veteran was afforded another VA shoulder examination in November 2014. The Veteran reported daily aching pain in his left shoulder that increased with any sort of overhead work, and with lifting or carrying. The Veteran described the functional loss due to his left shoulder disability as an inability to throw, and limited use of his left arm above the shoulder level. On initial range of motion testing, flexion and abduction were measured to 100 degrees. The examiner observed pain on examination that resulted in functional loss of flexion, abduction, and internal rotation. The examiner reported the Veteran was able to perform repetitive use testing with no additional functional loss or range of motion after three repetitions. The examiner reported pain, weakness, and lack of endurance would limit functional ability with repeated use over time. The examiner observed evidence of pain with weight bearing, and AC joint tenderness. The examiner reported the Veteran demonstrated reduced muscle strength of the left shoulder (4/5). The Veteran did not have muscle atrophy. The examiner reported the Veteran did not have ankylosis of the left shoulder, a rotator cuff condition, instability or dislocation, or any conditions or impairments of the humerus. The examiner reported the Veteran’s left shoulder disability limited his use of the left arm above shoulder level. In the April 2015 VA Form 9, the Veteran reported his left shoulder disability had increased in severity over the last two years. He stated that he had taken Flexeril the morning of the November 2014 VA shoulder examination, and that he would have had greater limitation of motion on examination had he not taken Flexeril. The Veteran reported that without Flexeril, he experiences pain and weakness at or below the shoulder level. During the August 2018 Board hearing, the Veteran reported that his left shoulder disability resulted in difficulty with putting a shirt on over his head, putting his cell phone up to his ear, brushing his teeth, and that he would wake up three to four times during the night to reposition his left shoulder due to pain. A June 2017 private assessment noted that the Veteran had severe glenohumeral arthritis of the left shoulder with bone on bone contact. The provider noted the Veteran demonstrated marked limitation of range of motion, with active abduction measured from 60 to 90 degrees, and active forward elevation was measured from 91 to 120 degrees. The provider reported the results of muscle strength testing of the left upper extremity were normal, and there was no muscle atrophy, joint instability, or tenderness. The Veteran reported maximal pain in his left shoulder in the evening, in the morning, after strenuous activity, and moderate to severe pain at night that interfered with his sleep. Additionally, he reported increased pain with activities of daily living, overhead activity, reaching behind his back, and laying on his left shoulder. In an August 2018 private treatment record, the provider indicated the Veteran reported an increase in the severity of his left shoulder symptoms. The provider reported the Veteran did not demonstrate tenderness to palpation of the left shoulder. The provider reported the Veteran demonstrated only mild limitation of range of motion of the left shoulder. In compliance with the October 2019 JMPR that found that the Board relied on an inadequate examination report in its February 2019 decision denying a disability rating in excess of 20 percent for the Veteran’s left shoulder disability, the Board remanded the Veteran’s increased rating claim to afford the Veteran a new VA shoulder examination. See November 2014 VA shoulder examination (examiner failed to describe additional range of motion loss due to pain and where pain began); see also Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). On examination in August 2020, the Veteran reported current symptoms of his left shoulder disability, diagnosed as left shoulder AC joint arthritis and glenohumeral arthritis with chondromalacia, included moderate pain that increased in severity with repetitive motion or raising his hand overhead. The Veteran reported the pain in his left shoulder was sometimes episodic, and triggered by prolonged use of the arm and shoulder, driving, and picking up objects from the ground. The Veteran reported pain in his left shoulder was alleviated by rest. The Veteran reported that treatment for his left shoulder disability included Flexeril and Motrin. The Veteran reported the impact of flare-ups of his left shoulder disability was constant pain at the left AC joint, and that he was unable to lift his arm over his head during a severe flare-up. On initial active range of motion testing of the left shoulder, flexion and abduction were measured to 70 degrees. The examiner reported passive range of motion testing of the left shoulder resulted in the same values as active range of motion measurements. The examiner reported the Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion after three repetitions. The examiner reported that range of motion itself contributed to a functional loss in that the Veteran was unable to raise his left arm above his head. The examiner reported that the Veteran exhibited pain with flexion, abduction, and external and internal rotation. The examiner reported there was objective evidence of localized tenderness or pain on palpation of the left AC joint that was moderately severe. The examiner reported there was evidence of pain with weight bearing and objective evidence of crepitus. The examiner reported there was objective evidence of pain with flexion, abduction, and external and internal rotation when the left shoulder was used in non-weight bearing. The examiner reported that pain and weakness would limit functional ability of the left shoulder with repeated use over time. The examiner estimated the Veteran’s left shoulder flexion and abduction would be limited to 60 degrees due to pain and weakness following repeated use over time. The examiner reported that pain, fatigue, weakness, and lack of endurance would limit functional ability during flare-ups of the Veteran’s left shoulder disability. The examiner estimated the Veteran’s left shoulder flexion and abduction would be limited to 50 degrees due to pain, fatigue, weakness, and lack of endurance during flare-ups. The examiner reported there were no additional contributing factors of the Veteran’s left shoulder disability. The examiner reported the Veteran demonstrated reduced muscle strength of the left shoulder (4/5). The Veteran did not have muscle atrophy. The examiner indicated that a left rotator cuff condition was suspected. The examiner reported the Veteran did not have ankylosis of the left shoulder, instability or dislocation, or any conditions or impairments of the humerus. The examiner reported that the functional impairment due to the Veteran’s left shoulder disability was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner reported that tasks requiring usage of the left forearm above the head should be avoided by the Veteran to prevent flare-ups of his left shoulder disability. The Board has considered the entire evidence of record and finds that an initial disability rating in excess of 20 percent is not warranted. At worst, the medical and lay evidence of record indicate the Veteran’s left shoulder disability results in range of motion of the left upper extremity limited to midway between the side and shoulder level due to such factors as pain, fatigue, weakness, and lack of endurance. DeLuca v. Brown, 8 Vet. App. 202 (1995). Limitation of motion to midway between the side and shoulder level (old criteria) and flexion and/or abduction limited to 45 degrees (amended criteria) is contemplated by the 20 percent evaluation currently assigned for the Veteran’s left shoulder (minor) disability. With respect to the terms of the October 2019 JMPR that directed the Board to explain how the use of Flexeril may affect the Veteran’s left shoulder disability rating, the Board previously noted that the Veteran was assigned a 10 percent evaluation based on noncompensable limitation of motion due to pain. In the February 2019 Board decision, granting an increase in the initial evaluation of the Veteran’s left shoulder disability to 20 percent, the Board considered the Veteran’s report that his range of motion of the left upper extremity would have been more greatly limited had he not taken Flexeril on the date of the VA examination in November 2014. In assigning an initial evaluation of 20 percent, the Board considered the extent of the Veteran’s report of functional limitations due to pain as a result of his left shoulder disability. As discussed above, and in the February 2019 Board decision, the Veteran reported that without Flexeril, he experienced pain at or below his shoulder level, to include difficulty putting a shirt on over his head, putting his cell phone up to his ear, and brushing his teeth. Such functional impairment is consistent with range of motion of the left upper extremity limited to midway between the side and shoulder level, or abduction/flexion limited to 45 degrees, warranting an evaluation of 20 percent, but no higher. Additionally, in consideration of the Veteran’s report of functional impairment and the severity of the Veteran’s left shoulder disability, the August 2020 VA examiner estimated that the Veteran’s left shoulder flexion and abduction would be limited to no less than 60 degrees due to pain and weakness following repeated use over time, and no less than 50 degrees due to pain, fatigue, weakness, and lack of endurance during flare-ups. As such, the Board finds that an evaluation in excess of 20 percent is not warranted, under either the former or current diagnostic criteria. In considering whether the Veteran would be entitled to a higher rating under any other Diagnostic Code, the Board finds that Diagnostic Code 5200 is not applicable as the competent medical evidence of record has not found ankylosis of the left upper extremity at any time during the period on appeal. Additionally, Diagnostic Code 5202 is not applicable, as the competent medical evidence of record has not demonstrated impairment of the humerus at any time during the period on appeal. Finally, a higher rating would not be warranted under Diagnostic Code 5203 for impairment of the clavicle or scapula, diagnosed as AC joint arthritis, because the maximum evaluation for such impairment is 20 percent. To the extent that the Veteran’s representative asserts consideration of an extraschedular rating is warranted for the Veteran’s left shoulder disability, the Board finds the symptoms of the Veteran’s left shoulder disability are contemplated by the rating criteria. See February 2021 Appellate Brief; see also 38 C.F.R. § 3.321. The Veteran’s left shoulder disability is manifested by limitation of motion due to pain, fatigue, weakness, and lack of endurance. The functional impairment due to such symptoms of the Veteran’s left shoulder disability are explicitly addressed in the rating criteria as set forth above. The evidence of record does not demonstrate that the Veteran’s left shoulder disability presents such an exceptional or unusual disability picture that the available schedular evaluations are inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Accordingly, the Board finds referral for extraschedular consideration is not warranted. In sum, for the entire period on appeal, neither the lay nor the medical evidence of record suggests the Veteran’s range of motion of the left upper extremity (minor) more closely approximates limitation to 25 degrees from the side, warranting a higher evaluation of 30 percent under Diagnostic Code 5201, under either the former or current diagnostic criteria. Accordingly, a disability rating in excess of 20 percent for a left shoulder disability is denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.