Citation Nr: 21015538 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-09 311 DATE: March 17, 2021 ORDER The claim for a higher rating than 10 percent prior to February 24, 2020, and 20 percent thereafter for cervical spondylosis is denied. The claim for a higher rating than 10 percent prior to April 24, 2018, and 20 percent thereafter for right acromioclavicular joint separation status-post surgical repair, with osteoarthritis, is denied. REMANDED The claim for an earlier effective date than August 22, 2019 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to February 24, 2020, there is not present the limited mobility due to cervical spondylosis, involving forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of cervical spine motion not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. From February 24, 2020, onward, there is not present the limited mobility due to cervical spondylosis, involving forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 3. Prior to April 24, 2018, the right shoulder was free of painful motion. The degree of mobility for the right shoulder due to right acromioclavicular joint separation status-post surgical repair, with osteoarthritis was greater than at the shoulder level. 4. From April 24, 2020, onward, the degree of any limited mobility for the right shoulder due to right acromioclavicular joint separation status-post surgical repair, with osteoarthritis, was not worse than limitation of motion of the arm at shoulder level. CONCLUSIONS OF LAW 1. The criteria are not met for a rating in excess of 10 percent prior to February 24, 2020, and 20 percent thereafter for cervical spondylosis. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59; 4.71a, Diagnostic Code 5242 (2020). 2. The criteria are not met for a rating in excess of 10 percent prior to April 24, 2018, and 20 percent thereafter for right acromioclavicular joint separation status-post surgical repair, with osteoarthritis. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59; 4.71a, Diagnostic Code 5201 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Army from August 1979 to October 1980. There was a Board videoconference hearing held November 2018, the transcript of which is of record. That hearing was held before a Veterans Law Judge (VLJ) who is no longer available. By June 2020 correspondence, the Board contacted the Veteran and informed him of the opportunity for another hearing before the VLJ now issuing a decision in this case. The Veteran declined the hearing and elected to continue the case on its merits. By August 2019 Board issuance, a decision/remand, the decision portion found that the RO’s prior reductions in rating for cervical spine and right shoulder disorders, from 20 to 10 percent effective December 1, 2014, were proper. The Board then remanded the claims remaining for higher rating than 10 percent for the cervical spine and right shoulder conditions to obtain further evidentiary development, along with an inextricably intertwined claim for TDIU. While the case was on remand, by April 2020 rating decision, the VA Regional Office (RO) granted the claim for TDIU, effective from August 22, 2019. The same decision granted a 20 percent rating, effective, April 24, 2018, for right acromioclavicular joint separation status post-surgical repair and a 20 percent rating, effective February 24, 2020, for cervical spondylosis. Subsequently, the July 2020 Board decision/remand remanded the claims for increased rating again for updated more comprehensive VA medical examinations, then remanded further, a claim for TDIU prior to August 22, 2019. Those matters have since returned for further consideration. Increased Rating 1. The claim for a higher rating than 20 percent for cervical spondylosis is denied. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. With regard to the Veteran’s cervical spine disability, when evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms “flare up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For the period on appeal, the Veteran’s cervical spine condition is rated at 10 percent prior to February 24, 2020, and 20 percent thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative arthritis. Diagnostic Code 5242 is in turn to be evaluated pursuant to VA’s General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is merited for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating would require forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine; or, favorable ankylosis of the entire thoracolumbar spine A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5242. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Id. at Note (5). Additionally, the Board notes that there was a recent regulatory update to the VA rating criteria for evaluating musculoskeletal disorders, effective February 7, 2021. See 85 Fed. Reg. 230 (Nov 30, 2020). The Veteran’s service-connected cervical spondylosis condition is rated under Diagnostic Code 5242. Although the portion of the rating schedule that addresses the musculoskeletal system was revised from February 7, 2021 onwards, this diagnostic code was not changed. Based on application of the VA rating criteria to the complete evidence of record, the Board finds that key requirements for increase are not met at this time for either time period. The Veteran had a VA examination in March 2014 which showed improvement in the Veteran’s cervical spine disorder. Specifically, the Veteran reported significant improvement in his neck condition since he underwent shoulder surgery in September 2013. He was off all narcotic pain killers and no longer used a TENS unit. He reported mild to moderate neck pain about one day a week. He denied flare-ups and range of motion testing showed forward flexion to 35 degrees with no objective evidence of painful motion. The combined range of cervical motion was to 230 degrees. The examiner stated that there was no clinical or objective evidence of additional functional limitations due to flare-ups pain on use, or repeated use over time beyond the measured and reported ranges. This does not evidence the Veteran meet or more nearly approximate the criteria for a 20 percent rating during this time period. After that timeframe, additional evidence of record indicated as to the condition, was not of record until several years later. There was a VA Compensation and Pension examination scheduled for 2015 however the Veteran did not report for it. Given the lack of any VA examination for the cervical spine disorder for several years, the Board’s August 2019 remand directive requested another such examination. As indicated, under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating requires forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. See 38 C.F.R. § 4.71a. At the outset, there is not a question of potential application of criteria for joint ankylosis. The Veteran obviously from ongoing examination history has some retained motion, in many cases close to standard level, and the term “ankylosis” means total absence of motion. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The consideration of the rating criteria turns to the other prong of limitation of motion. What remains to be seen is was there ever-present forward flexion of the cervical spine of 15 degrees or less. At the November 2018 Board hearing, the Veteran contended that the VA examination history did not fully reflect the severity of his service-connected cervical spine condition, because range of motion studies were often done while he had taken pain relief medication that it was indicated masked the severity of the symptoms. On VA examination February 2020, with regard to the diagnosis of degenerative arthritis of the spine, with cervical spondylosis, the Veteran reported progression of the neck condition since last examination, chronic daily neck pain which was localized and did not radiate and described treatment measures. Range of motion testing showed forward flexion to 30 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, right lateral rotation to 45 degrees, left lateral rotation to 40 degrees. There were flare-ups and functional loss described, though no notation as to measure lost range of motion. There was paraspinal tenderness to the cervical region consistent with condition. There otherwise was some degree of muscle spasm present. There was no radiculopathy, other neurologic abnormality, or Intervertebral Disc Syndrome (IVDS) present. X-ray studies indicated cervical spine arthritis was present. On examination again in October 2020, the diagnosis at outset was cervical spondylosis. The Veteran reported that his service-connected neck condition had become progressively worse over the previous 5 to 10 years. He denied any interval injury. He had chronic neck pain, which radiated into his right shoulder. Range of motion findings were as follows, forward flexion to 30 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees; right and left lateral rotation to 40 degrees. There was not any worsening on repetitive motion testing. There was present some functional loss in the form of pain, fatigue, weakness, and lack of endurance, however that did not result in additional measured lost range of motion, and was considered more of a factor during adverse weather conditions or with overuse of the joint region. There was objective evidence of localized tenderness or pain at the region of the cervical paraspinals, moderate in degree, and consistent with degenerative arthritis. There was no radiculopathy present or other neurologic abnormalities. IVDS was not present. According to the above, the Veteran did not manifest forward flexion to 15 degrees for the cervical spine, or close to that point, including having considered any functional loss due to pain, weakness, instability, or other factors. See DeLuca, supra. See also, 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020). Again, as indicated, there was nothing of or similar to joint ankylosis, or, other neurologic abnormality including but not limited to IVDS being present. For these reasons, the preponderance of the evidence weighs against the instant claim for increased rating for cervical spondylosis. VA’s benefit-of-the-doubt doctrine does not apply under the circumstances, and it follows that the claim is being denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. The claim for a higher rating than 20 percent for right acromioclavicular joint separation status-post surgical repair, with osteoarthritis, is denied. As to the service-connected right shoulder condition and the different relevant components, there are two ratable service-connected disabilities of record. One is the condition now on appeal for which higher rating is sought, the right acromioclavicular joint separation status-post surgical repair, with osteoarthritis. Also adjudicated service-connected, the residuals of a right humerus comminuted fracture (major) to include impingement syndrome, labral tear including Superior Labrum Anterior and Posterior (SLAP), bursitis, and degenerative arthritis. The latter condition of residuals of right humerus fracture is rated 30 percent. The first claim for a higher rating for right acromioclavicular joint separation status-post repair and osteoarthritis is the only issue being considered in this appeal. Rating decision code sheets indicated that prior to April 24, 2018, the Veteran’s right acromioclavicular joint separation status-post surgical repair, with osteoarthritis is rated under Diagnostic Code 5203, thereafter it is rated under Diagnostic Code 5201. Closer inspection of the rating decision narratives, however, makes clear that the granting of an increase to 20 percent and reducing back to 10 percent were based on limitation of arm motion under Diagnostic Code 5201. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants 20 percent. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity, and 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. 38 C.F.R. § 4.71a. Normal range of motion for the shoulder is defined as from 0 degrees of extension to 180 degrees of forward flexion; abduction from 0 to 180 degrees, and external and internal rotation from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. 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. The prior regulation will be considered for time periods both before and after the effective date of the regulatory change. However, the revised criteria will be applied if favorable to the claim from the effective date of the regulatory change. See VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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. As of February 7, 2021, the amended criteria for Diagnostic Code 5201 indicate as follows. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level (now defined as flexion and/or abduction limited to 90 degrees) warrants 20 percent. Limitation of motion of the arm from midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 30 percent rating for a major extremity, and 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5201 (from February 7, 2021). Based on the available evidence there is not a finding that any higher rating than 10 percent prior to April 24, 2018, and higher than 20 percent thereafter is warranted when applying the rating criteria, including the recent regulatory update to Diagnostic Code 5201. The Veteran had a VA examination in March 2014 which showed improvement in the Veteran’s right shoulder disorder. Specifically, the Veteran reported undergoing a right shoulder arthroscopy in September 2013 with significant improvement in his symptoms. He reported having occasional mild discomfort if he overdid it. He reported that he could now throw a football and lift 50-80 pounds with his right arm. He denied flare-ups. On physical examination, right shoulder flexion and abduction were to 180 degrees without objective evidence of painful motion. The Veteran was able to perform repetitive use testing and post-test range of motion remained at 180 degrees of flexion and abduction. The examiner stated that there was no clinical or objective evidence of additional functional limitation due to flare-ups, pain on use, or repeated use over time beyond the measured and reported ranges. With regards to any impairment of the clavicle or scapula, the examiner stated that the Veteran had degenerative joint disease of the acromioclavicular joint. The examiner did not indicate that there was evidence of any malunion, nonunion, or dislocation. Forward flexion and abduction were both shown to be full (180 degrees), and far greater than the “at shoulder level” (90 degrees) limitation necessary to support a 20 percent rating. Reviewing the evidence thereafter, the May 2015 VA outpatient physical therapy consult, indicated for the active range of motion, right shoulder flexion smooth, pain free, full range of motion to 170 degrees; scaption smooth, pain free within normal limits, normal scapulothoracic rhythm noted, no substitution of the scapula with scaption range of motion. External rotation in the adducted position 45 degrees right, 60 degrees left. Passive range of motion findings were similar. These initial findings do not show results more closely approximating the 20 percent level, per Diagnostic Code 5201 as written prior to February 7, 2021. The description of the outpatient evaluation results also omits mention of other objective symptomatology or issues, mostly already considered by the separate rating for residuals of right humerus comminuted fracture, the latter currently not on appeal. On VA examination in April 2018, the range of motion studies completed for the right shoulder indicated as follows, that there was flexion to 100 degrees, abduction to 100 degrees, external rotation to 20 degrees, internal rotation to 80 degrees. It was stated that there was a severely restricted range of motion which contributed to functional loss. There was no worsening of the condition with repetitive motion testing. As to whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time, the examiner was unable to say without mere speculation. It was stated the reason for this was that it was not possible to estimate loss of range of motion, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. There were not any additional contributing factors to disability from more or less movement than normal, or weakened movement, atrophy of disuse, instability of station, disturbance of locomotion, or other factors. There was no ankylosis present. There was present arthritis of the acromioclavicular joint with outlet impingement. On VA re-examination February 2020, the Veteran described continuing chronic daily pain affecting the right shoulder, some difficulty with performing overhead activities or with lifting or carrying in excess of 15-20 pounds. Range of motion for the right shoulder was flexion to 130 degrees, abduction to 140 degrees, external rotation to 90 degrees, internal rotation to 90 degrees. There was pain noted on examination which caused functional loss in the planes of motion of flexion and abduction. There was no evidence of pain with weight bearing. There was no additional functional loss or diminished range of motion after three repetitions. The functional loss present was considered to affect primarily daily life activities with overhead movement and lifting or carrying items in excess of 15-20 pounds. On re-examination October 2020, right shoulder range of motion was flexion to 120 degrees, abduction to 140 degrees, external rotation to 80 degrees, internal rotation to 80 degrees. These findings were not any worse after three repetitions. There was some degree of functional loss due to pain, weakness, and fatigability, and lack of endurance, however this was stated to manifest as situational because range of motion would be more limited in times of overuse or certain weather conditions. There was not indication of flare-ups. There was pain notated on weightbearing, however the joint mobility findings were the same as when measured during active range of motion testing. Based on the above, the criteria for increase were not met. The pre-April 24, 2018, time period on appeal is free of painful motion. The Board has considered his testimony that the surgery did not correct his painful and limited motion but does not find his statements as probative as the objective findings discussed above. The most pronounced findings as to severity according to range of motion studies being the April 2018 VA examination, showing flexion to 100 degree and abduction to 100 degrees, not worse with functional loss due to pain, fatigue, or weakness, or, with repetitive motion testing. See DeLuca, supra. The issue of evaluating range of motion specifically is what the current service-connected right shoulder condition is being rated on. Accordingly, the preponderance of the evidence weighs against this claim for increase, and under these circumstances VA’s benefit-of-the-doubt doctrine does not apply and the claim is being denied. REASONS FOR REMAND The claim for earlier effective date than August 22, 2019 for a TDIU is remanded. Since there are several service-connected disabilities for consideration and not recent VA examination addressing requirements for a TDIU, the issue of whether any unemployability due to service-connected disability, a remand for this examination is warranted. This would be a retrospective opinion for a time period prior to August 22, 2019, while still taking into account recent medical treatment history and employment history. The Board observes here, the April 2020 RO rating decision that granted a TDIU in the first place did this on the basis of the stated combined symptomatology from physical and psychological conditions, not on any one specific condition, and so it will help to get more evidence now when looking at the timeframe in question. The matter is REMANDED for the following action: 1. Obtain the Veteran’s most recent VA outpatient treatment records and associate them with the claims folder. 2. Then schedule the Veteran for a VA general medical examination regarding his TDIU claim. The claims folder must be made available for the examiner to review. All indicated tests should be accomplished and all findings reported in detail. The examiner is then requested to provide an opinion regarding the impact of the Veteran’s service-connected disabilities on the ability to secure and maintain substantially gainful employment, with respect to all sufficiently substantiated and reasonably accurate retrospective estimation of condition before August 22, 2019. In providing the requested opinion, the examiner should consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran’s service-connected disabilities as distinguished from any nonservice-connected physical or mental condition. The examiner must also take into consideration the relevant employment history and educational history of the Veteran. A complete rationale should be provided for any opinion offered, including a discussion of the medical evidence and principles which led to the conclusion(s) reached. 3. Then readjudicate the claim on appeal for TDIU prior to August 22, 2019, in light of all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.