Citation Nr: 21014616 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-21 081A DATE: March 15, 2021 ORDER The issue of service connection for conjunctivitis is dismissed. An initial rating higher than 20 percent for postoperative right shoulder arthroscopy with extensive debridement of degenerative changes (right shoulder disability) is denied. An initial rating higher than 20 percent for postoperative left shoulder arthroscopic acromioplasty and open distal clavicle and manipulation (left shoulder disability) is denied. REMANDED The issue of an initial compensable rating for gout, bilateral feet (gout) prior to November 19, 2009, is remanded. The issue of a rating higher than 20 percent for gout from November 19, 2009, to December 26, 2019, is remanded. The issue of a rating higher than 60 percent for gout since December 27, 2019, is remanded. FINDINGS OF FACT 1. In June 2020 rating decision, the Regional Office (RO) granted service connection for conjunctivitis; the Veteran has not appealed the rating or the effective date assigned to the disability. 2. The Veteran’s right shoulder did not more nearly approximate limitation of motion to 45 degrees. 3. The Veteran’s left shoulder did not more nearly approximate limitation of motion to 25 degrees from side. CONCLUSIONS OF LAW 1. The issue of service connection for conjunctivitis is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1302. 2. The criteria for an initial rating higher than 20 percent for the right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.73, DC 5201. 3. The criteria for an initial rating higher than 20 percent for the left shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.73, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to March 1987 and March 1989 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran presented testimony before the Board. In a June 2020 letter, the Veteran was advised that the VLJ who conducted the March 2018 hearing was no longer available. He was afforded the opportunity for another Board hearing and was advised that if he did not respond within 30 days of the letter, it would be assumed that he did not want another hearing. In January 2021, the Veteran and his representative submitted statements indicating that the Veteran did not want a hearing before a different VLJ and to consider his appeal on the evidence of record. In September 2018, the Board remanded the appeal for additional development. Specifically, the increased rating claims for the shoulders were remanded to afford the Veteran VA examinations to determine the current severity of his service-connected right and left shoulders. In December 2019, the Veteran was afforded VA examinations that reflected the current severity of his service-connected right and left shoulders. Accordingly, the December 2019 VA examination is sufficient for evaluation purposes, as the examiner rendered findings responsive to the rating criteria. See 38 C.F.R. § 4.2. Therefore, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a June 2020 rating decision, the RO increased the ratings for the right and left shoulder disabilities to, separate 20 percent ratings, effective July 1, 2006. Also, in that decision, the RO increased the rating for gout to a 60 percent December 27, 2019. The Veteran has not expressed satisfaction with the increased disability ratings; these issues, thus, remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The issue of service connection for a conjunctivitis. In a June 2020 rating decision, the RO granted service connection for conjunctivitis, which was previously on appeal after being denied by the RO’s March 2007 rating decision. The Veteran has not appealed either the rating or the effective date assigned to this disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Accordingly, as there remains no allegation of error of fact or law for appellate consideration, the issue of service connection for conjunctivitis is dismissed. Higher Initial Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Musculoskeletal Disabilities Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complaints of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require “objective” evidence but can be satisfied with lay and other nonmedical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). 1. An initial rating higher than 20 percent for a right shoulder disability. 2. An initial rating higher than 20 percent for a left shoulder disability. The Veteran’s right and left shoulder disabilities are rated, separately, as 20 percent disabling under DC 5201(arm, limitation of motion of). Ratings assigned pursuant to this DC may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (non-dominant) extremity. The Veteran is right-handed (documented in a September 2006 VA examination); therefore, his right shoulder disability affects his major extremity and his left shoulder disability affects his minor extremity. 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). DC 5201 rating criteria was not amended, other than clarifying that the loss of motion included flexion or abduction and provided specific range of motion measurements for the ratings. Under DC 5201, limitation of motion, a 20 percent rating is warranted when motion of the major and minor shoulder is limited to shoulder level at 90 degrees. Limitation of motion of the arm from midway between the side and shoulder level, 45 degrees, warrants a 30 percent for the major extremity and a 20 percent rating for the minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent for the major extremity and a 30 percent rating for a minor extremity. See 38 C.F.R. § 4.71a, DC 5201. For reference, standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Turning to the evidence, the Veteran was afforded VA examinations in September 2006 and December 2019. He reported shoulder pain, limitation of motion, and swelling. See VA examination reports (September 2006; December 2019). He had flare ups of right and left shoulder symptoms. Id. At the September 2006 VA examination, he indicated that during flareups, he had difficulty lifting his shoulders above his head and difficulty with golfing and pushups. During the December 2019 VA examination, he described that during flare ups, he had increased pain and decreased range of motion. The examiner noted that the Veteran had bilateral shoulder surgery in 2010. Upon physical examination at the September 2006 examination, flexion for the right and left shoulder were recorded at 180 degrees with pain. Abduction for the right shoulder was limited to 173 degrees and for the left shoulder abduction was limited to 157 degrees. Upon repetitive-use testing, flexion for the right shoulder was limited to 160 degrees and for the left shoulder flexion was limited to 171 degrees. Abduction for the right shoulder was limited to 164 degrees and for the left shoulder, abduction was limited to 168 degrees. Upon physical examination at the December 2019 examination, flexion for the right and left shoulders were limited to 175 degrees with pain and abduction was limited to 110 degrees with pain. Upon repetitive-use testing, flexion for the right shoulder was limited to 170 degrees and abduction was limited to 105 degrees and there was no additional loss of function or range of motion after three repetitions for the left shoulder. The examiner indicated that pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time. The examiner also found that pain, weakness, fatigability, and incoordination significantly limited the Veteran’s functional ability with flare ups. The examiner estimated that during pain, weakness, fatigability, incoordination, and flare ups the Veteran’s flexion for the right and left shoulders would be limited from 170 to 165 degrees and abduction would be limited from 105 to 100 degrees. The December 2019 examiner indicated that there was pain, fatigue, weakness, and lack of endurance that caused functional loss. The examiner indicated that there was localized tenderness or pain on palpation of the joint or associated soft tissue, as the Veteran had achiness. The examiner indicated that there was instability of station, as the Veteran was unable to lift heavy objects. The examiner indicated that there was no ankylosis, instability, dislocation, recurrent dislocation, clavicle, scapula, or acromioclaviculare joint condition. The examiner concluded that there was pain on passive range of motion and when the joint was used in non-weight bearing. For the following reasons, initial ratings higher than 20 percent for the right and left shoulder disabilities are not warranted. The Veteran’s right shoulder disability did not more nearly approximate limitation of motion to 45 degrees and the left shoulder disability did not more nearly approximate limitation of motion to 25 degrees from side. For example, throughout the appeal period, the Veteran’s right shoulder disability was limited, at worst, for flexion to 160 degrees upon repetitive-use testing and abduction was limited to, at worst, 105 upon repetitive-use testing. Importantly, the December 2019 VA examiner considered the Veteran’s reports of shoulder pain, functional impairment, and flareups and estimated that during periods of pain, fictional impairment, and flareups the Veteran’s flexion for the right and left shoulders would be limited to, at worst, 165 degrees and abduction would be limited to, at worst, 100 degrees. The lay and medical evidence reflects that the Veteran’s flare ups were not so severe, frequent and/or prolonged to warrant higher ratings. The evidence shows that even considering pain, flare ups, and other functional factors, the Veteran’s right shoulder symptoms were not shown to be so disabling as to actually or effectively result in limitation of arm motion to 45 degrees, the requirement for the next higher percent rating greater than 20 percent (i.e., 30 percent) for limitation of motion of the major extremity under DC 5201. Similarly, with respect to the left shoulder, the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran’s left shoulder symptoms were not shown to be so disabling as to actually or effectively result in limitation of arm motion to 25 degrees from the side-the range of motion requirement for the next higher percent rating greater than 20 percent (i.e., 30 percent) for limitation of motion of the minor extremity under DC 5201. The Board finds that no other diagnostic code pertaining to the right and left shoulders that would provide any higher disability rating. There is no evidence of ankylosis or impairment of the humerus as contemplated by DCs 5200 and 5202. Under DC 5203, the maximum rating for impairment of the scapula or clavicle is 20 percent and thus would not provide a basis for a higher rating. 38 C.F.R. § 4.71a. In sum, the Veteran’s right and left shoulder disabilities resulted in impairments that are no more than 20 percent disabling and higher ratings are not warranted (except for periods when temporary total ratings were in effect). 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5200-5203. REASONS FOR REMAND 1. The issue of an initial compensable rating for gout prior to November 19, 2009, is remanded. 2. The issue of a rating higher than 20 percent for gout from November 19, 2009, to December 26, 2019, is remanded. 3. The issue of a rating higher than 60 percent for gout since December 27, 2019, is remanded. 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). The Veteran’s gout is currently rated under DCs 5002-5017 which now rated the disability based on limitation of motion of the affected parts. In October 2020, the Veteran was afforded a VA examination that evaluated his gout; however, the examination report does not contain range of motion testing. Therefore, because the record does not contain sufficient evidence to rate the Veteran’s disability under the new rating criteria, a new examination is warranted. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of his service-connected gout. All necessary tests should be conducted, to include range of motion testing. The claims file must be sent to the examiner for review. (Continued on next page) The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.