Citation Nr: 21014338 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-46 272 DATE: March 11, 2021 ORDER Entitlement to a rating in excess of 20 percent for the period from April 28, 2017 to August 21, 2019 for right (major) shoulder disability is denied. Entitlement to a rating not to exceed 40 percent for right (major) shoulder disability for the period from August 22, 2019 forward is granted. FINDINGS OF FACT 1. For the period from August 28, 2017 to August 21, 2019, the weight of the evidence of record is against a finding that the Veteran’s right shoulder disability manifested with more than painful, noncompensable, limitation of motion (LOM). 2. As of August 22, 2019, the evidence of record is at least in equipoise that the Veteran’s right (major) shoulder more nearly approximated motion limited to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for the period from April 28, 2017 to August 21, 2019 for right (major) shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to a rating of 40 percent for right (major) shoulder disability have been met, effective August 22, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. REASONS AND BASES FOR FINDING AND CONCLUSION On initial review of this case the Board denied a rating in excess of 10 percent for the period prior to April 28, 2017 and remanded the period from April 28, 2017 forward for a current examination. See 10/25/2018 BVA Decision. As discussed further below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the revised rating criteria for the musculoskeletal system became effective on February 8, 2021, see 82 Fed. Reg. 35, 719 (Aug. 1, 2017), and notes further that the new criteria were considered in the decision below. Entitlement to a rating in excess of 20 percent for the period April 28, 2017 to November 2, 2020, and in excess of 30 percent from November 3, 2020 forward for right (major) shoulder disability. Legal Requirements The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as LOM, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court of Appeals for Veterans Claims (Court) stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible, stated by examiners in terms of additional loss of range of motion (ROM). DeLuca, 8 Vet. App. at 205. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually 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 Court has held that the final sentence of § 4.59 creates a requirement that certain ROM and other testing be conducted whenever possible in cases of joint disabilities. Rating Criteria Normal ROM for the shoulder is 0 to 180 degrees for forward flexion (elevation) and abduction; and, 0 to 90 degrees for internal and external rotation. See 38 C.F.R. § 4.71a, Plate I. It is noted that the rating criteria pertaining to orthopedic disabilities were revised effective February 7, 2021. Under the pre-amended criteria, disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. Diagnostic Code 5200 pertains to ankylosis, which is not shown here and thus is not for application. Likewise, Diagnostic Code 5202 addresses humerus impairment, including loss of head, nonunion or fibrous union. Again, this is not indicated by the medical evidence and thus this code section requires no consideration here. Finally, as there is no dislocation or separation of the clavicle, Diagnostic Code 5203 is not for application. Thus, under the pre-amended criteria only Diagnostic Code 5201 is of relevance, and is described below. A distinction is made between major (dominant) and minor upper extremities for rating purposes. In the instant case, the examination reports reflect that the Veteran is right-handed, and thus that his disabled shoulder is the major, or dominant, shoulder. The applicable criteria under Diagnostic Code 5201 for the major side provide that shoulder motion limited to 25 degrees from the side warrants the maximum, 40 percent rating; motion limited to midway between the side and shoulder level warrants a 30 percent rating; and, motion to shoulder level warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5201. The rating criteria do not provide for separate ratings for shoulder LOM on flexion and abduction. Instead, the rating criteria address motion of one joint in different planes. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). Effective February 7, 2021, the criteria under Diagnostic Code 5201 are essentially unchanged; it is now merely noted that “motion limited to midway between the side and shoulder level” means flexion and/or abduction limited to 45 degrees and that “at shoulder level” means 90 degrees. Discussion The Veteran sustained a right shoulder injury during active service that required corrective surgery. A June 2001 rating decision granted service connection with a 10 percent rating, effective in December 2000. See 06/03/2001 Rating Decision. VA received the Veteran’s current claim of entitlement to an increased rating in January 2012. See 01/23/2012 VA 21-0820. As noted above, the Board denied a higher rating in the 2018 decision. The Veteran testified at the hearing that his right shoulder symptoms had worsened since his last examination in 2012. He testified to tingling sensations, pain that shot down his arm, and at times, numbness. He explained that it almost felt like his right arm dislocates. See 04/28/2017 Hearing Testimony. The Board determined that the Veteran’s testimony was evidence that his disability had worsened and remanded for a current examination. See 38 C.F.R. § 3.159(a)(2). The examination report (08/22/2019 C&P Exam) reflects that the examiner conducted a review of the claims file and took and noted the Veteran’s lay reported history. The Veteran reported constant pain, which he assessed on average as of 7/10 intensity. He reported further that he could not put on a T-shirt, place his arm behind him to put on a jacket, and he could not lift anything above shoulder level; he could not sleep on it; it was stiff in the morning; and his pain increased when the weather was damp or cold. The examiner noted the Veteran’s reports as a description of flare-ups and functional loss due to repeated use over time. Physical examination revealed ROM on flexion of 0 to 75 degrees, abduction of 0 to 65 degrees, external rotation of 0 to 40 degrees, and internal rotation of 0 to 90 degrees, all with pain. The examiner noted evidence of pain on weight bearing, tenderness of the soft tissue, and tenderness on palpation at the anterior, and marked muscle atrophy. There was no evidence of crepitus. The left shoulder examination was normal in all respects. The objective findings on clinical examination showed that abduction to 65 degrees was within 15 degrees of shoulder level. The examiner noted that repetitive-use testing revealed flexion to 45 degrees, abduction to 50 degrees, and external rotation to 30 degrees. Muscle strength was 2+/5 on flexion and abduction, and there was severe deltoid, infra- and supraspinatous atrophy. Id., P. 6, 7. Upon receipt of the examination reports, the AOJ interpreted the examination findings as showing painful motion, for which the minimum compensable rating is warranted. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Hence, the AOJ assigned a 20 percent rating, effective April 28, 2017. The Board finds that the AOJ misapplied Southall-Normal and did not apply Sharp v. Shulkin, 29 Vet. App, 26 (2017) at all. Southhall-Norman applied Mitchell to mean that the minimum compensable rating is warranted where there is painful, noncompensable LOM throughout the ROM. In Sharp the Court further clarified the proper application of DeLuca by requiring examiners, based on the claimant’s report of symptoms and the examination findings, to estimate in degrees of ROM, the additional loss of ROM due to functional loss caused by flare-ups and repeat use over time. The August 2019 examination report reflects that the examiner did not merely note painful motion on repetitive-use testing but in fact noted additional loss as required by DeLuca. The Board finds that LOM of flexion of 45 degrees (the lesser between flexion and abduction) more nearly approximates midway and shoulder level, which would warrant a 30 percent rating for the major side, if that were the only examination finding. 38 C.F.R. § 4.71a, DC 5201. The examiner noted that the examination findings were consistent with the Veteran’s description of his functional loss. See 0822/2019 C&P Exam, P. 5. The examiner, however, did not fully comply with Sharp, as he noted that he could not state the additional loss in terms of ROM. Instead, the examiner noted that based on the Veteran’s current and past history, the current objective clinical evaluation, and the review of the Veteran’s medical records, including imaging, it was just as likely as not that with repetitive motion over time, as well as flare-ups, there was a severe loss of movement. Id. Although the examiner did not note the additional loss in degrees of ROM, the fact that the examiner had already noted a reduction to 45 degrees on repetitive-use testing leads the Board to interpret “severe loss of movement” to mean that the Veteran’s ROM on functional loss due to flare-ups and repeat use over time to more nearly approximate 25 degrees from the side and the maximum, 40 percent rating, for the major side. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5201. The Board finds that the rating allowed takes into consideration the loss of muscle strength and the atrophy. The Board finds no factual basis for consideration of a rating for a Muscle Group Injury. The August 2019 examination report noted a diagnosis of rotator cuff injury, which is not the service-connected disability. The AOJ requested clarification, and the examiner noted that it was an error, and that the examination findings revealed continuing residuals from the SLAP tear repair. See 11/03/2020 C&P Exam. The Board finds that the Veteran’s competent testimony at the hearing supports the minimum compensable rating of 20 percent already in effect from April 28, 2017. However, the Board finds no evidence to support a rating in excess of 20 percent prior to the date of the August 2019 Examination. Hence, the Board finds that the 40 percent rating is effective as of the date of that examination, August 22, 2019. 38 C.F.R. § 3.400(o). In as much as the Veteran now has the maximum allowable rating as of August 2019, the only issue that remains is whether a higher rating is supported by other pathology; a review of the record shows that it is not. The examination reports reflect that the right shoulder has not manifested with ankylosis; the Veteran has not lost the use of the arm; and there is no evidence of humerus pathology or loss of head. See 08/22/2019 C&P Exam; 11/03/2020 C&P Exam, 2nd Entry. As set forth above, the Board has afforded the Veteran the benefit of all doubt. Further, the Board notes that the Veteran is entitled to a staged rating for any part of the rating period on appeal that his right shoulder manifested a more severity. Hart v. Mansfield, 21 Vet. App. 505 (2007). As discussed above, the Board has allowed a staged rating in accordance with the evidence of record. The Board also notes that all of the examination reports reflect that the surgical scar residual is asymptomatic. Hence, there is no factual basis for a separate rating for scar pathology. See 38 C.F.R. § 4.118, DC 7804. The noted further that the Veteran has remained employed full time as the manager of a convenience store throughout the rating period. Hence, the ratings allowed compensate him to the extent practical for the impairment in earning capacity due to his disability. 38 C.F.R. § 4.1. There is no issue as to his employability. See 38 C.F.R. § 4.16. As noted earlier in this decision, the revised rating criteria went into effect on February 7, 2021. In this case, as there were no substantive changes to the criteria there is no basis for an increase due to the amendments. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.