Citation Nr: 21020840 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 08-14 460 DATE: April 8, 2021 ORDER An initial rating in excess of 20 percent for left (minor) shoulder arthritis is denied. FINDING OF FACT The evidence of record shows that the Veteran’s left (non-dominant) shoulder disability has been shown to result in range of motion for abduction being functionally limited to 35 degrees. The Veteran has been suspected to have a rotator cuff condition, and an acromioclavicular joint condition. The Veteran has not been found to have recurrent dislocation, ankylosis, loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union, or malunion of the humerus with moderate or marked deformity. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for left shoulder arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5201-5003, 85 Fed. Reg. 76453, 76462. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has verified active duty service in the United States Air National Guard from December 1990 to December 1995, May 1999 to June 1999, and December 2000 to June 2003. The matter is on appeal before the Board from an August 2007 rating decision. The Veteran provided testimony at a Board hearing before the undersigned Acting Veterans Law Judge in March 2011. A transcript of the hearing is of record. This matter was most recently before the Board in May 2020. All development is completed, and the issue has returned to the Board for further adjudication. Increased Rating Left Shoulder The Veteran’s left shoulder disability is rated under Diagnostic Codes (DCs) 5201-5003, based upon limitation of motion. The Veteran is right-handed, and therefore, his left shoulder is considered his non-dominant or minor shoulder. For the non-dominant shoulder, Diagnostic Code 5201 provides a 20 percent rating for limitation of motion to shoulder level; a 20 percent rating for limitation of motion to midway between side and shoulder level; and a 30 percent rating for limitation of motion to 25 degrees from side. 38 C.F.R. § 4.71a, DC 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees 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. The Board notes that on February 7, 2021, during the course of this appeal, revisions to the Schedule of Rating Disabilities that addresses the musculoskeletal system went into effect. The U.S. Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that 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). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran’s disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. In this case, the revisions to the regulations have a limited impact in that they have only been in effect since February 7, 2021, and they do not substantively change how the shoulder is rated. Rather, the revisions define the degree of limitation of motion for “shoulder level” and “midway between side and shoulder level.” Under the revised regulations the 20 percent rating for limitation of motion to shoulder level provides for flexion and/or abduction limited to 90 degrees. The 20 percent rating for limitation of motion to midway between side and shoulder level provides for flexion and/or abduction limited to 45 degrees. A 30 percent rating for the minor shoulder requires flexion and/or abduction limited to 25 degrees from the side. 85 Fed. Reg. 76453, 76462. As the earlier iteration did not provide a defined degree for limitation of motion with both 20 percent ratings, but did for the 30 percent rating, the Board will adopt the new definitions. Over the period on appeal, the Veteran has undergone three VA examinations pertaining specifically to his left shoulder disability, and one general medical examination. The Board notes that two of the VA shoulder examinations were previously found by the Board to not be in compliance with Correia and 38 C.F.R. § 4.59, where “joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” See Correia V. McDonald, 28 Vet. App. 158 (2016). However, these VA examinations still provide probative value in assessing the Veteran’s range of motion, especially as one of the examinations reflects the Veteran’s range of motion with flexion at its worst. As such, the findings from these examinations will also be summarized below. The Veteran first underwent the VA general medical examination in May 2007, at which the Veteran was noted to have diagnoses of left rotator cuff tendinitis and degenerative joint disease of the acromioclavicular joint of the left shoulder. The Veteran’s range of motion testing showed flexion and abduction from 0 to 180 degrees, and internal and external rotation from 0 to 90 degrees. There was no pain on motion. There was tenderness over spine of scapula, infra, and supraspinatus. The Veteran next underwent a VA shoulder examination in December 2014, at which the Veteran reported left shoulder pain with exertion. The Veteran did not relay that flare-ups impacted the function of his shoulder; however, he did describe having functional impairment of his left shoulder due to pain and decreased range of motion with difficulty working at and above shoulder level. The Veteran’s range of motion testing reflected flexion and abduction from 0 to 160 degrees, external rotation from 0 to 65 degrees, and internal rotation from 0 to 50 degrees. There was no pain noted on the examination with range of motion testing, or with weight bearing. There was objective evidence of anterior deltoid and scapular tenderness. The Veteran underwent repetitive use testing, and there was no additional loss of range of motion or functional loss after repetitive use. The examiner did not find that pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time or during flare-ups. The Veteran’s strength for both left shoulder abduction and forward flexion were rated as 5/5. The examiner did not find the Veteran to have muscle atrophy, ankylosis, shoulder instability, dislocation, labral pathology, loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union, or malunion of the humerus with moderate or marked deformity. The examiner did suspect the Veteran to have a left shoulder rotator cuff condition. Both the empty-can test and the lift-off subscapularis test were positive. The Hawkins’ impingement test and the external rotation/infraspinatus strength test were negative. Additionally, the examiner noted that an acromioclavicular (AC) joint condition was suspected, and explained that the Veteran had left AC degenerative joint disease. There was not tenderness on palpation of the AC joint. The cross-body abduction test was negative. The Veteran did not report the utilization of any assistive devices in relation to his left shoulder. Imaging studies were not noted to be available. The Veteran next underwent a VA shoulder examination in December 2017, at which the Veteran relayed having left shoulder discomfort with movement, especially when reaching over his head. He did not report having flare-ups of his left shoulder; however, he did describe functional impairment of his left shoulder as discomfort of the left shoulder when he is doing activities where he is reaching over his head. The Veteran’s range of motion testing reflected flexion and abduction from 0 to 95 degrees, and external and internal rotation from 0 to 90 degrees. The examiner noted that the Veteran exhibited pain with abduction, however, it did not result in or cause functional loss. There was not objective evidence of pain with weight bearing, nor was there localized tenderness or pain on palpation of the joint and associated soft tissue. There was no evidence of crepitus. The Veteran was not able to perform repetitive use testing due to fear of pain. The examiner reported that they were not able to say without mere speculation whether pain, weakness, fatigability, or incoordination would significantly limit functional ability wither either repeated use over time or flare-ups. The Veteran’s strength for both left shoulder abduction and forward flexion were rated as 4/5. The examiner did not find the Veteran to have muscle atrophy, ankylosis, a rotator cuff condition, shoulder instability, dislocation, labral pathology, clavicle, scapula, acromioclavicular joint, or sternoclavicular joint conditions, loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union, or malunion of the humerus with moderate or marked deformity. The Veteran did not report the utilization of any assistive devices in relation to his left shoulder. Imaging studies were not noted to be available. The last VA shoulder examination the Veteran underwent was in December 2020, at which the Veteran reported that due to his left shoulder disability he was now having trouble with even putting his wallet in his back pocket. He relayed having flare-ups with his left shoulder and described them as occurring only when he does “something stupid.” The left shoulder flare-ups are mild, as the Veteran is used to dealing with pain, they last about a day or so, and are precipitated by the Veteran doing something “stupid,” such as picking up 40-pound bags of cat food or cat litter. The left shoulder flare-ups are alleviated by avoiding lifting anything heavy. The Veteran also reported having functional impairment with his left shoulder and provided the explanation that at the age of 75 with many other challenges there are manty things that are a problem. He noted that he had stopped buying 40-pound bags of kitty litter a long time ago, due to either his shoulder or his legs. He also now hires kids to rake leaves, cut bushes, and plow snow. The Veteran’s range of motion testing reflected flexion from 0 to 170 degrees, abduction from 0 to 60 degrees, external rotation from 0 to 50 degrees, and internal rotation from 0 to 90 degrees. The examiner noted that the Veteran exhibited pain with abduction and external rotation, however, it did not result in or cause functional loss. There was not objective evidence of pain with weight bearing. There was moderate tenderness at the GH area. There was evidence of crepitus. The Veteran underwent repetitive use testing, and there was additional loss of range of motion after three repetitions. The examiner noted that pain, fatigue, weakness, and lack of endurance caused the functional loss. The Veteran’s range of motion after repetitive use testing showed flexion from 0 to 170, abduction from 0 to 40, external rotation from 0 to 40, and internal rotation from 0 to 80. The examiner reported that the Veteran was being examined immediately after repetitive use over time, and found that pain, fatigue, weakness, and lack of endurance limited the Veteran’s functional ability with repeated use over a period of time. The examiner described the loss of function in terms of range of motion with flexion from 0 to 165 degrees, abduction from 0 to 35 degrees, external rotation from 0 to 35 degrees, and internal rotation from 0 to 75 degrees. The examiner reported that the examination was not being conducted during a flare-up, and while the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during a flare-up, the examiner found that pain, fatigue, weakness, and lack of endurance caused functional loss during a flare-up. The examiner described it in terms of range of motion with flexion from 0 to 165 degrees, abduction from 0 to 35 degrees, external rotation from 0 to 35 degrees, and internal rotation from 0 to 75 degrees. The examiner reported there to be additional factors of disability that included disturbance of locomotion and difficulty with lifting the arm to lift anything greater than 40 pounds. The Veteran’s strength for both left shoulder abduction and forward flexion were rated as 4/5. The examiner did not find the Veteran to have muscle atrophy, ankylosis, shoulder instability, dislocation, labral pathology, loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union, or malunion of the humerus with moderate or marked deformity. The examiner did suspect the Veteran to have a left shoulder rotator cuff condition. The Hawkins’ impingement test, the empty-can test, the external rotation/infraspinatus strength test, and the lift-off subscapularis test were all positive. Additionally, the examiner noted that a clavicle, scapula, AC joint, or sternoclavicular joint condition was suspected. However, the Veteran did not have an AC Joint condition or any other impairment of the clavicle or scapula. The examiner reported that the clavicle or scapula condition affected the Veteran’s range of motion of the shoulder. There was no tenderness on palpation of the AC joint. The cross-body abduction test was positive. The Veteran did not report the utilization of any assistive devices in relation to his left shoulder. Imaging studies were noted to be available, that documented arthritis. A review of the Veteran’s VA and private treatment records does not provide any findings of any greater significance than those relayed above. In general, the Veteran’s medical treatment records reflect complaints of pain and stiffness in relation to the Veteran’s left shoulder disability. Based upon the foregoing, an initial rating in excess of 20 percent for the period on appeal is not warranted. At no time during the appeal period, has either the Veteran’s flexion or abduction been shown to be limited to 25 degrees from the Veteran’s side, even when functional impairments such as pain, fatigue, weakness, and lack of endurance during repetitive use over time or with flare-ups are taken into account. Flexion at its worst, was reflected during the December 2017 VA shoulder examination, where the Veteran’s flexion was from 0 to 95 degrees. This shows a degree of motion with flexion that is around or slightly above shoulder level, that is slightly above 90 degrees. Abduction at its worst, was shown during the December 2020 VA shoulder examination, where the examiner found that the Veteran’s abduction would be limited from 0 to 35 degrees with both flare-ups and repeated use over time. This shows a degree of motion that is aligned with midway between side and shoulder level, that is limited to 45 degrees. The Veteran’s range of motion for both flexion and abduction align with a 20 percent rating. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran’s right knee disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Nevertheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Here, the Veteran’s 35 degrees of limitation for abduction is, as previously noted, based upon pain, fatigue, weakness, and lack of endurance with either repetitive use over time or during flare-ups. As such, it has not been shown that functional limitation limited the Veteran’s range of motion to an extent as to warrant an increased rating, that is the Veteran’s range of motion has not been limited to 25 degrees. (Continued on the next page)   The Board has considered all other potentially applicable DCs, however, no other DC would result in a more favorable finding. As such, an increased rating at any time during the appeal period is not warranted. Accordingly, an initial rating in excess of 20 percent for left shoulder arthritis is denied. Carole R. Kammel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.