Citation Nr: 21020893 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-22 283 DATE: April 8, 2021 ORDER Entitlement to a disability rating more than 20 percent for acromioclavicular (AC) joint separation, right (dominant) shoulder with degenerative joint disease prior to November 6, 2019 is denied. Entitlement to a disability rating more than 30 percent for AC joint separation, right (dominant) shoulder with degenerative joint disease from November 6, 2019 is denied. FINDINGS OF FACT 1. Prior to November 6, 2019, the Veteran’s AC joint separation, right (dominant) shoulder with degenerative joint disease was manifested by pain and limitation of motion of the arm no greater than the shoulder level. 2. From November 6, 2019, the Veteran’s AC joint separation, right (dominant) shoulder with degenerative joint disease is manifested by pain and limitation of motion of the arm greater than 25 degrees from the side. CONCLUSIONS OF LAW 1. Prior to November 6, 2019, the criteria for a disability rating in excess of 20 percent for AC joint separation, right (dominant) shoulder with degenerative joint disease are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2020). 2. From November 6, 2019, the criteria for a disability rating in excess of 30 percent for AC joint separation, right (dominant) shoulder with degenerative joint disease are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1995 to April 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s right shoulder disability claim in October 2018. Thereafter, in a May 2020 rating decision, the Veteran’s right shoulder disability rating was increased to 30 percent effective November 6, 2019. However, as the increased evaluation did not constitute a full grant of the benefits sought, the Veteran’s claim for higher evaluations remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran’s claims folder has returned to the Board for further appellate consideration. Higher evaluation for AC joint separation, right (dominant) shoulder with degenerative joint disease Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2020). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2020). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2020). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Veteran’s AC joint separation, right (dominant) shoulder with degenerative joint disease is rated as 20 percent disabling prior to November 6, 2019 and 30 percent thereafter pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5201 (degenerative arthritis; arm, limitation of motion). The evidence demonstrates that the Veteran’s service-connected right shoulder disability is manifested by limitation of motion of the right shoulder. The Board also notes that the competent and probative evidence does not document ankylosis of the right shoulder. Therefore, Diagnostic Code 5200 which pertains to ankylosis of the shoulder is not for consideration. Although the Board acknowledges that the medical evidence indicates impairment of the humerus and clavicle which are rated under Diagnostic Codes 5202 and 5203, respectively, the Board finds that neither of these Diagnostic Codes would avail the Veteran of a higher rating. In this regard, there is no finding of malunion of the humerus manifested by marked deformity which is the criteria required for a 30 percent rating under Diagnostic Code 5202. Further, 20 percent is the highest available rating under Diagnostic Code 5203. As such, the Board finds that Diagnostic Code 5201 is the most appropriate Diagnostic Code for application. Diagnostic Code 5201 provides a 20 percent rating for limitation of arm motion at shoulder level for both the major and minor joint; a 30 percent rating for limitation of arm motion midway between the side and shoulder level for the major joint and a 20 percent rating for the minor joint; and a 40 percent rating for limitation of arm motion to 25 degrees from the side for the major joint and a 30 percent rating for the minor joint. As reflected in the record, the Veteran is right handed, and therefore his right shoulder is the major joint. See, e.g., the November 2019 VA examination report. Normal forward elevation, or flexion, of the shoulder is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. The applicable rating criteria for musculoskeletal disorders, in particular shoulder disabilities, under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201)]. The Board notes that Diagnostic Code 5201 was amended to note that shoulder level is 90 degrees and midway is 45 degrees. The Board notes that these rating criteria were not otherwise amended. As such, the Board finds that remand for a new VA examination to consider the new rating criteria is not warranted as the evidence discussed below is sufficient to rate the Veteran’s right shoulder disability. The Veteran was provided a VA examination in October 2015. He reported having increased episodes of pain and decreased range of motion. The pain was aggravated by cold, damp weather as well as increased usage of the arm. He reported flare-ups manifested by dull pain that migrated back and around the shoulder blade. He also noted functional loss which required him to take Percocet and Vicodin. He did not use assistive devices. Range of motion testing revealed right shoulder flexion to 60 degrees, abduction to 60 degrees, and internal and external rotation to 30 degrees. The examiner noted that range of motion contributed to functional loss in that the Veteran was not able to lift, push, or pull. There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. The Veteran was not able to perform repetitive use testing with at least three repetitions due to increased pain. The examiner was not able to judge decreased range of motion without resorting to speculation. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over time. The examination was not conducted during a flare-up, but the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. The Veteran was not able to perform Hawkins’ impingement test, empty-can test, external rotation/infraspinatus strength test, or lift-off subscapularis test. There was no finding of shoulder instability, dislocation, or labral pathology suspected. The examiner noted impairment of the clavicle and scapula which affected range of motion of the shoulder (glenohumeral) joint. There was tenderness on palpation of the AC joint. Cross body adduction test was positive. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus or malunion of the humerus with moderate or marked deformity. The examiner noted the effect of the Veteran’s right shoulder disability on employment in that the Veteran had to operate a crane joystick with his left hand and could not carry any weight with his right upper extremity. When driving, he used his left hand and did not shovel or use a lawn mower. He was not able to pick up his children with his right arm or go fishing. Shaving was difficult and he could not button shirts. The Veteran was afforded another VA examination on November 6, 2019. He continued to report pain in the right shoulder as well as flare-ups and functional impairment which caused inability to lift more than 20 pounds, push, or pull. He did not use assistive devices. Range of motion testing revealed flexion to 60 degrees, abduction to 50 degrees, external rotation to 40 degrees, and internal rotation to 45 degrees. Pain was noted on examination which caused functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing but there was evidence of pain with nonweight bearing as well as crepitus. Further, there was objective evidence of pain on passive range of motion testing. The Veteran was not able to perform repetitive-use testing with at least three repetitions due to pain and limitation of motion. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Range of motion revealed flexion to 50 degrees and abduction, internal rotation, and external rotation to 40 degrees. The examination was not conducted during a flare-up, but the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. Pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups, and range of motion testing revealed flexion to 30 degrees, abduction to 30 degrees, external rotation to 25 degrees, and internal rotation to 20 degrees. There was no finding of muscle atrophy or ankylosis. There was no Hawkins’s impingement test, empty-can test, external rotation/infraspinatus strength test, or lift-off subscapularis testing as no rotator cuff condition was suspected. There was also no finding of instability, dislocation, or labral pathology. The examiner noted dislocation (AC separation or sternoclavicular dislocation) which affected range of motion of the shoulder. Cross-body adduction testing was positive. There was no loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus or malunion of the humerus with moderate or marked deformity. The Veteran note that the right shoulder disability affected employment in that he could not walk longer than 20 minutes and could not reach higher than his belly button. The Board notes that VA and private treatment records document treatment for the Veteran’s right shoulder pain. Range of motion testing conducted in September 2014 at FLJ Medical, P.C. revealed flexion to 140 degrees, abduction to 140 degrees, external rotation to 30 degrees, and internal rotation to L4-5. Also, range of motion testing conducted in September 2014 at Canandaigua Orthopedic Associates, PC revealed flexion and abduction to 110 degrees. Based on the evidence of record, the Board finds that the Veteran’s right shoulder symptomatology does not warrant an evaluation in excess of 20 percent under Diagnostic Code 5201 prior to November 6, 2019. A higher 30 percent disability rating is warranted when functional equivalent of limitation of shoulder motion is no greater than midway between side and shoulder level. Deluca, 8 Vet. App. at 204-207; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (addressing what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups). Here, the Veteran reported the presence of pain. However, the pain did not functionally limit motion to midway between the side and shoulder level or less. Furthermore, pain is contemplated in the assigned evaluation. Therefore, although the Veteran reported limitation in lifting his right arm and generally limited use of his right arm, the statements do not establish limitation of function to midway between the side and shoulder level or less. The Board finds the October 2015 VA examination report in particular to be of significant probative value as it was based on thorough examination of the Veteran and further does not reveal limitation of motion to midway between the side and shoulder level or less. As limitation of right shoulder motion was greater than midway between the side and shoulder level, a higher rating is not warranted as to the Veteran’s service-connected right shoulder disability prior to November 6, 2019. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board also finds that the Veteran’s right shoulder symptomatology does not warrant an evaluation in excess of 30 percent under Diagnostic Code 5201 from November 6, 2019. A higher 40 percent disability rating is warranted when limitation of motion of the arm is to 25 degrees or less from the side. Here, the Veteran reported the presence of pain, functional loss, and flare-ups. However, even with consideration of these symptoms, range of motion did not result in limitation of the right arm to 25 degrees or less from the side. Furthermore, pain is contemplated in the assigned evaluation. Therefore, although the Veteran reported limitation in lifting his right arm and generally limited use of his right arm, the statements do not establish limitation of right arm motion to 25 degrees or less from the side. The Board finds the November 2019 VA examination report in particular to be of significant probative value as it was based on thorough examination of the Veteran and further revealed limitation of right arm motion greater than 25 degrees even with consideration of pain, functional loss, and flare-ups. As limitation of right shoulder motion was greater than 25 degrees from the side, a higher rating is not warranted as to the Veteran’s service-connected right shoulder disability from November 6, 2019. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board is aware that the representative reported in 2018 that motion was limited to 25 degrees from the side. Nothing suggests actual knowledge of the representative. Regardless such evidence/argument has been contradicted by all credible examinations, to include the most recent evaluations. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.