Citation Nr: 21013847 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-34 333 DATE: March 10, 2021 ORDER A rating in excess of 40 percent for a right shoulder disability, to include a rating in excess of 20 percent prior to September 23, 2020, is denied. FINDING OF FACT 1. The evidence does not show that the Veteran’s right (dominant) shoulder disability resulted in or ankylosis; impairment of humerus; or impairment of clavicle or scapula. 2. Prior to September 23, 2020 and despite pain, the Veteran’s right (dominant) shoulder disability was not shown to result in range of motion being functionally limited to midway between side and shoulder level, or worse. CONCLUSION OF LAW The criteria a rating in excess of 40 percent for a right shoulder disability, to include a rating in excess of 20 percent prior to September 23, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service January 1999 to February 2000, and from April 2000 to February 13, 2013. While still on active duty, the Veteran was found to be medically unfit for service and was ultimately given a medical discharge. The Veteran filed service connection claims, including service connection for a right shoulder disability in November 2011 while he was still in service. An April 2013 rating decision granted service connection for the right shoulder and assigned an initial rating of 10 percent from February 14, 2013, the date that the Veteran first separated from his service. Subsequently, a rating decision in September 2017 increased the rating to 20 percent from February 14, 2013. The Veteran continued to seek a higher rating. A March 2019 Board decision remanded the issue for further development, to include conducting a VA examination to assess the severity of the Veteran’s right shoulder. Based on the VA examination in September 2020, an October 2020 rating decision increased the rating for the right shoulder to 40 percent, effective September 23, 2020, the date of the VA examination. Increased Rating - Right Shoulder The Veteran’s right shoulder is currently rated under the diagnostic code (DC) 5201 based on limitation of motion. The Veteran is right-handed, as such, his right shoulder is considered to be his dominant shoulder. Under DC 5201, for the dominant shoulder, a 20 percent rating is assigned for limitation of motion to shoulder level. A 30 percent rating is assigned for limitation of motion to midway between side and shoulder level. A 40 percent rating is assigned for limitation of motion to 25 degrees from side. 38 C.F.R. § 4.71a. DC 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees, and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. 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. Here, the amendments to the rating schedule do not have any retroactive application. 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 from February 7, 2021. Under the new regulation, DC 5201 provides that, for the dominant shoulder, a 20 percent rating is assigned for limitation of motion to shoulder level (flexion and/or abduction limited to 90 degrees). A 30 percent rating is assigned for limitation of motion to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A 40 percent rating is assigned for limitation of flexion and/or abduction to 25 degrees from side. 38 C.F.R. § 4.71a. DC 5201. That is, the new regulations do not specifically change how a shoulder disability is rated. Rather, the revisions were intended to provide more objective markers for each of the ratings. While the regulations in effect at the time the Veteran filed his claim did not include specific range of motion limitations, the revisions were intended to be consistent with VA practice. That is, it has traditionally been assumed that shoulder level is consistent with 90 degrees. The Veteran was afforded a VA examination in March 2012, at which the examiner diagnosed him with status post tear of the anterior labrum, degenerative osteoarthritis, tenosynovitis and subcoracoid bursitis of the right shoulder and residual of mild to moderate pian and stiffness. On examination, the Veteran’s right shoulder showed abduction limited to 160 degrees and forward flexion limited to 160 degrees. There was objective evidence of pain following repetitive motion, but it was not found to cause additional limitations on range of motion. The Veteran was afforded a second VA examination in on September 23, 2020. On examination, the Veteran’s right shoulder showed abduction limited to 110 degrees and forward flexion limited to 120 degrees. The examiner indicated that pain, weakness, fatigability or incoordination reduced range of abduction 10 degrees and flexion to 10 degrees. Muscle strength testing was 4/5 without atrophy. The examiner did not find ankylosis, impairment of no clavicle or scapular, or imperilment of the humerus in the right shoulder. VA treatment records do not show right shoulder symptoms that were worse than those revealed by the VA examinations. For example: VA treatment records in January 2014 showed that the Veteran was seen for right shoulder pain, and he could adduct to180 degrees with marked tenderness to palpation biceps tendon. Records in February 2014 showed that the Veteran’s right shoulder was essentially pain free with full range of motion. Prior to September 23, 2020 The evidence of record shows that prior to September 23, 2020, even considering the pain with repetitive use, the range of motion of the Veteran’s right arm had not shown to be functionally limited to lower than the midway between the side and shoulder level, which is required by a 30 percent or a higher rating. VA examination in March 2012 showed that the Veteran could move his right arm well above the shoulder level. VA treatment records also show that the Veteran at one time had full range of motion of his right shoulder. As such, a rating in excess of 20 percent is not warranted based on range of motion. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the Veteran has already received a 20 percent rating for his right shoulder during this period, and the evidence does not show that pain, weakness or other symptoms has effectively functionally limited the range of motion in the Veteran’s right shoulder to midway between his side and shoulder level as would be required for the assignment of a 30 percent rating. For example, a VA examination in March 2012 showed that the Veteran could move his right arm well above the shoulder level, and pain did not cause additional limitations on range of motion. As such, a rating in excess of 20 percent is not warranted under 38 C.F.R. §§ 4.40 and 4.45. Other Diagnostic Codes related to the shoulder and arm were considered, but none were applicable to the Veteran’s disability as there was no impairment of the humerus, clavicle or scapula and no showing of ankylosis. From September 23, 2020 From September 23, 2020, the Veteran’s right shoulder is rated at 40 percent rating, which is the highest rating under DC 5201 for the dominant shoulder. A 50 percent rating is assigned for unfavorable ankylosis under DC 5200. 50, 60, and 80 percent ratings are assigned for fibrous union of or nonunion of or loss the head of humerus respectively under DC 5202. However, as the evidence shows that the Veteran does not have ankylosis or impairment of the humerus of his right shoulder, DC 5200 and DC 5202 do not apply. The Board has also considered the new regulation effective February 7, 2021. The new regulation does not change the maximum rating of 40 percent under DC 5201, and does not change the rating criteria under DC 5200 or the rating criteria for the 59, 60, and 80 percent ratings under Diagnostic Code 5202. As such, the new regulation does not affect the evolution of a rating in excess of 40 percent for the right shoulder. (Continued on the next page)   Accordingly, a rating in excess of 40 percent for a right shoulder disability, to include a rating in excess of 20 percent prior to September 23, 2020 is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.