Citation Nr: 21014536 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-07 882 DATE: March 12, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for right shoulder strain is denied. FINDINGS OF FACT 1. Without good cause, the Veteran failed to appear at a January 2020 VA examination scheduled in conjunction with his claim for increase of his initial disability rating for service-connected right shoulder strain. 2. The Veteran is right hand dominant; his right arm is his major upper extremity. 3. Throughout the period on appeal, the Veteran’s right shoulder strain manifested through painful motion of the arm, but has not been shown to have motion limited to midway between the side and shoulder level to include flexion and/or abduction limited to 45 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.321, 3.655, 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5201-5019 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from June 2009 to October 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2019 Board decision, the issue addressed herein was remanded to the RO for further development, to include the administration of a VA examination compliant with the requirements set forth in the case of Correia v. McDonald, 28 Vet. App. 158 (2016). The case has now been returned to the Board for further appellate action. As discussed in greater detail below, the development directed by this remand has been completed to the extent permitted by the cooperation of the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Increased Ratings – Right Shoulder The Veteran generally asserts that he should have a higher rating for his right shoulder strain, initially assessed at a 10 percent disability. While this matter was before the RO after the Board’s March 2019 remand, a 20 percent rating was assigned for the entire period on appeal. See June 2020 decision review officer decision. In January 2020, the Veteran was scheduled for a VA examination. The Veteran failed to appear and has not provided explanation or otherwise stated good cause for his absence. Accordingly, as this is a claim for an increase of an initial rating, it shall be rated based upon the evidence of record. 38 C.F.R. § 3.655(b); see Turk v. Peake, 21 Vet. App. 565 (2008). The Veteran’s shoulder disability has been evaluated under Diagnostic Code (DC) 5201-5019. See 38 C.F.R. § 4.71a. As the Veteran is right-handed, his right shoulder is considered his dominant upper extremity, and rated accordingly. 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. See 85 Fed. Reg. 76453 (November 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. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Based upon the impairment demonstrated by the service-connected right shoulder disability, the Board has determined that the former criteria is more favorable, and accordingly, has applied that criteria to the analysis below. Further, the Veteran has not been shown to have limitation of the right shoulder to the extent necessary for a rating in excess of 20 percent under the former or revised version of Diagnostic Code 5201. Prior to February 7, 2021, Diagnostic Code 5201 provided that a 20 percent rating is warranted for limitation of motion of the major or minor arm when motion is only possible to the shoulder level. When motion is limited to midway between the side and shoulder level, a 20 percent evaluation is assigned for the minor arm, while a 30 percent rating is assigned for the major arm. When motion is limited to 25 degrees from the side, a 30 percent rating is assigned for the minor arm, while a 40 percent rating is assigned for the major arm. 38 C.F.R. § 4.71a. The normal range of motion of the shoulder is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Effective February 7, 2021, Diagnostic Code 5201 provides that flexion to shoulder level reflects flexion and/or abduction limited to 90 degrees; midway between the side and shoulder level reflects flexion and/or abduction limited to 45 degrees; and motion limited to 25 degrees from the side reflects flexion and/or abduction limited to 25 degrees. Although the prior version of Diagnostic Code 5201 did not give explicit description in terms of degrees, the normal range of motion was of record and the ranges of motion listed on the revised criteria are consistent with such. Moreover, illustrations included in 38 C.F.R. § 4.71, Plate I, reflect shoulder level was 90 degrees flexion and/or abduction. Therefore, there is no prejudice to the Veteran by the Board proceeding with adjudication of this appeal. Service treatment records demonstrate that in October 2012, while on active duty, the Veteran underwent an orthoscopic acromioplasty of his right shoulder. Imaging studies of the shoulder from that time did not indicate the presence of arthritis. A July 2013 VA examination reflects that the Veteran reported tightness of the shoulder joint with occasional pain, but no flare-ups. Range of motion testing revealed flexion and abduction limited to 170 degrees with objective evidence of painful motion beginning at 170 degrees in both tests. The Veteran was able to perform repetitive use testing with at least three repetitions which did not result in any additional limitation in range of motion. However, there was additional functional loss noted after repetitive use due to pain on movement and less movement than normal. The Veteran exhibited localized tenderness on palpation of the joint with guarding of the shoulder also noted. Strength testing was normal and there was no finding of ankylosis. Additional rotator cuff-specific testing proved negative for any additional impairments. There was no history of recurrent dislocation of the joint, however, the AC joint did present with spurring. VA treatment notes from 2015 to 2018 reflect that the Veteran denied any reduced range of motion or strength in the right shoulder but continued to experience pain upon motion. Additional imaging of the right shoulder in March 2015 continued to show an absence of arthritis. Private treatment records from 2018 reflect the same reports of pain with a referral to physical therapy for treatment. Upon a careful review of the record, the Board finds that a rating of 20 percent, but no higher, is warranted for the Veteran’s right shoulder disability throughout the period on appeal. The record is clear that the Veteran has experienced painful motion in his right shoulder throughout the appeal. To that end, it is the intention of the regulations to recognize actually painful joints, due to healed injury, as entitled to at least the “minimum compensable rating for the joint.” 38 C.F.R. § 4.59. In this case, the minimum compensable rating for the shoulder under Diagnostic Code 5201 is 20 percent for the dominant or non-dominant arm. 38 C.F.R. § 4.71a. Thus, the appropriate rating for the Veteran’s right shoulder is 20 percent. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). The Veteran has not demonstrated limitation of the right arm to midway between side and shoulder level to warrant a higher evaluation, to include flexion and/or abduction limited to 45 degrees as stated under the revised version of Diagnostic Code 5201. Further, the Board finds that the rating currently assigned considers the pain on movement that the Veteran experiences in his shoulders that affects his functional ability, to include any increased functional impairment during flare-ups or following repeated use over time. The Board has considered a higher rating for the Veteran’s right shoulder disability under other potentially applicable Diagnostic Codes. However, there is no indication from the record that the Veteran’s right shoulder disability is productive of ankylosis or abduction limited to midway between shoulder level and his side. Additionally, there is no indication that the Veteran has impairment of the humerus, clavicle, or scapula under the former or revised versions of the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a , DC 5200, 5202, 5203 (2019); see also 85 Fed. Reg. 76453. (Continued on the next page)   In reviewing the Veteran’s appeal, the Board has also taken into consideration the Veteran’s lay statements in support of his claim. Even conceding that many of the Veteran’s symptoms are capable of lay observation, the Veteran does not assert that he possesses the necessary medical skill and expertise to assess the severity of his right shoulder disability in regard to the rating criteria. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Consideration has also been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). For all these reasons the Board finds the preponderance of the evidence is against a higher rating for the Veteran’s service-connected right shoulder disability. Accordingly, the appeal is denied. John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, 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.