Citation Nr: 21014684 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 19-06 088 DATE: March 15, 2021 ORDER An initial rating in excess of 20 percent for right shoulder sprain is denied. An initial rating in excess of 10 percent for a right ankle sprain is denied. An initial rating in excess of 10 percent for right wrist sprain is denied. REMANDED Entitlement to service connection for a stomach/esophagus disorder, to include as secondary to medications taken for service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right shoulder sprain is not manifested by motion limited to midway between the side and shoulder level. 2. The Veteran’s right ankle sprain has not been manifested by marked limitation of motion. 3. The Veteran is receiving the maximum schedular rating for right wrist sprain. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for right shoulder sprain have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 2. The criteria for an initial rating in excess of 10 percent for right ankle sprain have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 3. The criteria for an initial rating in excess of 10 percent for right wrist sprain have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has over 20 years of active service in the United States Navy. He has verified service from May 1963 to June 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal of July 2009, July 2010 and June 2017 rating decisions. The claims were recently remanded by the Board in November 2019. With respect to the increased rating claims for the right shoulder, right wrist and right ankle, the Board remanded the claims for updated VA examinations which were conducted in December 2020. As such, the Board finds that the RO substantially complied with the Board’s remand directives and will proceed with a decision on these claims. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Further, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). 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. 1. An initial rating in excess of 20 percent for right shoulder sprain As an initial matter, the Board notes that the Veteran is right-hand dominant. Prior to the regulatory change, the Veteran’s right shoulder sprain was evaluated as 20 percent disabling under Diagnostic Code 5201. A 20 percent rating is assigned when there is limitation of motion of an arm at the shoulder level for the major extremity. For the major extremity, a 30 percent rating is assigned when there is a limitation of motion to midway between the side and shoulder level and a 40 percent rating is assigned when there is limitation of motion of the arm to 25 degrees from side. 38 C.F.R. § 4.71a, Code 5201. As of February 7, 2021, under the amended criteria, a 20 percent rating is warranted under Diagnostic Code 5201 when there is limitation of motion of an arm at the shoulder level for the major extremity (described as flexion and/or abduction limited to 90 degrees). For the major extremity, a 30 percent rating is assigned when there is a limitation of motion to midway between the side and shoulder level (described as flexion and/or abduction limited to 45 degrees) and a 40 percent rating is assigned when there is limitation of motion of the arm to 25 degrees from side. On VA examination in January 2011, flexion of the right shoulder was to 130 degrees with pain noted at 130 degrees. Abduction was to 105 degrees with pain demonstrated at 105 degrees. External and internal rotation were to 90 degrees each. The Veteran was able to perform repetitive use testing without any additional range of motion loss in the right shoulder. There was tenderness of the right shoulder. The examiner noted that the right shoulder joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. On VA examination in December 2020, flexion of the right shoulder was to 145 degrees. Abduction was to 145 degrees. External and internal rotation were to 55 degrees each. Pain was noted on all ranges of motion, but it did not result in or cause functional loss. There was no additional loss of function or range of motion after three repetitions. After repeated use, the examiner estimated that flexion would be to 140 degrees. Abduction would be to 140 degrees. External and internal rotation would be to 50 degrees each. With flare ups, the examiner determined that flexion of the shoulder would be to 135 degrees. Abduction would be to 135 degrees. External rotation and internal rotation would be to 45 degrees each. There was no ankylosis or instability of the shoulder. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 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. Prior to the regulatory change, the next higher rating of 30 percent required evidence that the Veteran’s shoulder motion is limited to midway between the side and shoulder, which the Board interprets as limitation of abduction or flexion to 45 degrees. Throughout this rating period, however, the Veteran’s recorded ranges of his right shoulder motion have reflected shoulder abduction at worst, at 105 degrees and flexion, at worst, at 130 degrees, which equates to greater than his shoulder level, in keeping with his currently assigned 20 percent rating. Thus, based on these recorded ranges motion, an increased rating pursuant to Code 5201, prior to the regulatory changes, is not warranted. Similarly, the Board finds that a higher rating under Diagnostic Code 5201 is not warranted under the amended criteria as the criteria for a 30 percent rating continues to require limitation of motion to midway between the side and shoulder level, but is now specifically described as flexion and/or abduction limited to 45 degrees. As noted above, the Veteran’s right shoulder motion has reflected shoulder abduction at worst, at 105 degrees and flexion, at worst, at 130 degrees. Accordingly, a higher rating under the amended criteria is also not warranted. In sum, the evidence of record fails to reflect a basis for awarding a rating higher than 20 percent for the Veteran’s right shoulder disability under the prior and revised rating criteria, and the claim is denied. 2. An initial rating in excess of 10 percent for a right ankle sprain Prior to the regulatory change, the Veteran’s right ankle sprain was evaluated as 10 percent disabling under Diagnostic Code 5271. Diagnostic Code 5271 provided a 10 percent rating for moderate limitation of motion of the ankle and a maximum 20 percent rating for marked limitation. Words such as “moderate” and “marked” were not defined in the Rating Schedule. The Rating Schedule provided some guidance, however, by defining normal range of motion of the ankle as from zero to 20 degrees of dorsiflexion and from zero to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted under Diagnostic 5271, for moderate limitation of motion of the ankle (now defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and a maximum 20 percent rating for marked limitation (now defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). On VA examination in January 2011, dorsiflexion of the right ankle was to 15 degrees and plantar flexion was to 35 degrees. Pain was noted at the end of each motion. The Veteran was able to perform repetitive use testing without any additional range of motion loss in the right ankle. There was tenderness of the right ankle. The examiner noted that the right ankle joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment or drainage. There was no subluxation of the right ankle. On VA examination in December 2020, dorsiflexion of the right ankle was to 15 degrees and plantar flexion was to 40 degrees. Pain was noted on both ranges of motion but did not result in or cause functional loss. There was no additional loss of function or range of motion after three repetitions. After repeated use, the examiner estimated that dorsiflexion would be 10 degrees and plantar flexion would be 35 degrees. With flare ups, the examiner estimated that dorsiflexion would be to 5 degrees and plantar flexion would be to 30 degrees. There were no additional factors contributing to the ankle right disability. Ankylosis of the ankle was not demonstrated. Upon review of the record, the Board finds that the preponderance of the evidence does not support the assignment of an initial rating higher than 10 percent for the service-connected right ankle disability under Diagnostic Code 5271, prior to the regulatory change. In order to merit the assignment of the next highest (20 percent) rating for limitation of motion of the right ankle, the evidence must show marked limitation of motion. Here, the Veteran’s right ankle exhibited dorsiflexion limited, at worst estimated by the December 2020 VA examiner, to be 5 degrees, however, plantar flexion was estimated to 30 degrees. The evidence does not show marked limitation of motion of the right ankle. While the December 2020 VA examiner estimated that the Veteran would have had significant reduction in dorsiflexion with flare ups, the Board would consider less than 5 degrees of dorsiflexion to represent marked limitation of motion. For limitation of motion to be of a great degree, the Board would expect more than 75 percent loss of motion. Such is not present in this case at any point. Similarly, the Board finds that a higher rating under Diagnostic Code 5271 is not warranted under the amended criteria as the criteria for a higher 20 percent rating continues to require marked limitation of the ankle (now defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). As noted above, the Veteran’s right ankle dorsiflexion was estimated to be limited at worst by the December 2020 VA examiner to be 5 degrees and plantar flexion, at worse, was estimated to be 30 degrees. Accordingly, a higher rating under the amended criteria is also not warranted. In sum, the evidence of record fails to reflect a basis for awarding a rating higher than 10 percent for the Veteran’s right ankle disability under the prior and revised rating criteria, and the claim is denied. 3. An initial rating in excess of 10 percent for right wrist sprain The Veteran’s right wright sprain is currently rated under Diagnostic Code 5215. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Diagnostic Code 5215 provides for the assignment of a 10 percent rating for limitation of motion of the wrist, with dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. The Veteran is receiving the maximum schedular rating under Diagnostic Code 5215 and therefore cannot receive a higher one. As the Veteran is receiving the maximum schedular rating, a schedular rating higher than 10 percent for his right wrist disability is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a stomach/esophagus disorder, to include as secondary to medications taken for service-connected disabilities, is remanded. 2. Entitlement to a TDIU is remanded. In a March 2019 VA examination report, the examiner determined that the Veteran’s gastroesophageal reflux disease (GERD) is unrelated to his service- connected disabilities. However, the examiner provided a confusing discussion and opinion on whether the Veteran’s GERD is aggravated by medications taken for treatment of his service-connected disorders. The examiner stated that nonsteroidal anti-inflammatory drugs (NSAIDS) could be taken for treatment of musculoskeletal conditions and that it is acknowledged that NSAIDS can cause gastrointestinal irritation but then also stated that the etiology of GERD is multifactorial and can include medications/supplements. The examiner concluded that “a greater than 50% nexus cannot be established between GERD and the Veteran’s service-connected disabilities, which in my opinion, makes the claimed condition less likely than not proximately due to or the result of the claimant’s service connected condition.” Consequently, the Board finds that a remand is warranted for clarification. The TDIU claim is inextricably intertwined with the service connection claim being remanded herein. As such, consideration of the TDIU claim must be deferred pending development requested below. The matters are REMANDED for the following action: Forward the claims file to an appropriate examiner for review and an addendum opinion that responds to the following: Is it at least as likely as not (a 50% or better probability) that the Veteran’s GERD has been caused or aggravated by his service-connected disabilities (to include as due to medication prescribed for treatment of the service-connected disabilities)? The opinion must address aggravation. If the GERD is found to not have been caused or aggravated by the Veteran’s service-connected disabilities (or medication prescribed for the disabilities), identify the etiology considered more likely. (Continued on next page) A complete rationale must be provided for the requested opinion. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.