Citation Nr: 21020985 Decision Date: 04/09/21 Archive Date: 04/08/21 DOCKET NO. 16-07 622 DATE: April 9, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for left shoulder degenerative arthritis and degenerative joint disease (previously diagnosed as left shoulder impingement syndrome status post left clavicle fracture) is denied. REFERRED The issue of peripheral neuropathy of the left upper extremity was raised in a June 2020 VA Examination and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The Veteran’s left shoulder degenerative arthritis and degenerative joint disease has not manifested as limitation of motion of the arm to 25 degrees from the side nor has flexion and /or abduction been limited to 25 degrees from the side. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a left shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes (DCs) 5003-5201. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5003-5201). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1979 to May 1979, June1989 to July 1989, and from September 2009 to October 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision from the Department of Veterans Affairs (VA) Regional office (RO). A November 2020 rating decision granted an initial rating of 20 percent for left shoulder degenerative arthritis and degenerative joint disease (previously diagnosed as left shoulder impingement syndrome status post left clavicle fracture) effective June 18, 2013. Since the Veteran has not expressed satisfaction with that decision the claim remains on appeal and have been recharacterized to reflect the increase granted by the RO. This matter was remanded for further development in September 2018. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2019); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to an initial rating in excess of 20 percent for left shoulder degenerative arthritis and degenerative joint disease (previously diagnosed as left shoulder impingement syndrome status post left clavicle fracture). In his February 2016 VA Form 9 Substantive Appeal, the Veteran contended that his left shoulder disability caused pain and limited his left arm mobility. He seeks an initial rating in excess of 20 percent for left shoulder degenerative arthritis and degenerative joint disease. As an initial matter the Board notes that consistent with its September 2018 remand directive the agency of original jurisdiction (AOJ) requested the Veteran submit any relevant private treatment records or identify any such records so that VA could obtain them in June 2019 correspondence to the Veteran. However, the Veteran did not respond to that request. The duty to assist is not a one - way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Here, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in the development of this appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board cannot 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). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. The Veteran’s left shoulder disability is assigned a 20 percent rating under Diagnostic Code 5003-5201. 38 C.F.R. § 4.71a. The hyphenated diagnostic code indicates that degenerative arthritis in the left shoulder has been rated based on limitation of motion of the shoulder. See 38 C.F.R. § 4.20. Ratings for disabilities of the shoulder vary with the extent of disability and with which arm is affected, and a distinction is made between major (dominant) and minor sides, or “handedness.” 38 C.F.R. § 4.69. The Veteran is right-handed; thus, his left shoulder and arm is considered the minor upper extremity. Prior to February 7, 2021 under DC 5201, limitation of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 20 percent rating is warranted for the minor extremity and a 30 percent rating is warranted for the major extremity. When motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity and a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a, DC 5201. Normal range of motion of the shoulder is flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, and internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. After February 7, 2021 under DC 5201, limitation of motion of the minor extremity at the shoulder level defined as flexion and/or abduction limited to 90 degrees warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level defined as flexion or abduction limited to 45 degrees warrants a 20 percent rating for the minor extremity. Where flexion and /or abduction is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5201). The Board has reviewed the lay and medical evidence of record which are consistent with the VA examination findings. The Veteran was examined by VA in July 2013. He reported that he injured his left shoulder in June 1989 during active duty while working as a demonstrator in hand to hand combat. He was flipped over someone’s back, landing directly on his left shoulder. He felt his shoulder dislocate and then spontaneously reduce. Xray imaging indicated a left distal clavicle fracture. The Veteran reported constant sharp left shoulder pain since the injury which gradually increased over time. Pain is aggravated by exercise, overhead activity, and repeated motion such as pushing a lawn mower. The Veteran is right hand dominant. He denied flareups. Range of motion testing of his left shoulder revealed 0 to 165 degrees of flexion with no objective evidence of painful motion, 0 to 165 degrees of abduction with no objective evidence of painful motion, external rotation 0 to 90 degrees and internal rotation 0 to 45 degrees with no evidence of painful motion. Repetitive motion was possible with no additional limitation in motion. Range of motion testing of the Veteran’s right shoulder was within normal limits. Functional impairment of the Veteran’s left shoulder included less movement than normal, weakened movement, pain palpation, and reduced muscle strength to 4/5 for left shoulder forward flexion. The examiner diagnosed the Veteran’s disability as a healed left distal clavicle fracture and chronic left shoulder impingement syndrome. The Veteran was again examined by VA in June 2020. His left shoulder disability was diagnosed as degenerative left shoulder joint disease and left shoulder impingement syndrome status post left clavicle fracture. The Veteran complained of constant burning pain in the shoulder joint with numbness and tingling in the left upper extremity. He reported that flare-ups were triggered by moving and lifting his left arm. The Veteran described his functional impairment as the inability to reach overhead with his left arm and left arm weakness. Examination revealed objective evidence of localized tenderness or pain on palpation of the left shoulder AC joint and anterior shoulder. Left shoulder range of motion testing revealed 0 to 90 degrees flexion, 0 to 85 degrees abduction, and 0 to 90 degrees internal and external rotation. Pain was present on all range of motion examinations of the left shoulder. There was no functional loss of motion on repetitive use testing. Decreased range of motion resulted in decreased function of the left arm including an inability to reach overhead and difficulty with lifting. The examiner opined that weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time reducing left shoulder range of motion to 0 to 85 degrees flexion, 0 to 80 degrees abduction, and 0 to 90 degrees internal and external rotation. The VA examiner assessed no evidence of ankylosis, instability, dislocation, or labral pathology in the left arm. After careful review of the competent medical evidence, as outlined above, the Board finds a rating in excess of 20 percent for the Veteran’s left shoulder condition is not warranted. With regard to DC 5201, a rating in excess of 20 percent requires evidence of motion limited to 25 degrees from the side or subsequent to the diagnostic code changes of February 7, 2021 flexion and /or abduction limited to 25 degrees from the side. The VA examinations in 2013 and 2020, however, did not show such limitation of the left shoulder, even considering the estimated limitation of motion during left shoulder flareups. The Board has also considered the provisions of 38 C.F.R. §§ 4.40 4.45, 4.59, and the holdings in DeLuca. In this case, there is no question that the Veteran’s left shoulder disability has caused painful motion and limitation of motion; however, as noted above, even considering any additional functional limitation due to pain, the left shoulder disability has not been manifested by limitation of motion approximating 25 degrees from the side or flexion and /or abduction limited to 25 degrees from the side, as required for a higher (30 percent) rating for limitation of motion of the minor extremity. Additionally, the Board has considered whether any other diagnostic code would provide a higher initial rating for the left shoulder disability. As lay and medical evidence shows no ankylosis of the scapulohumeral articulation, the Board finds that DC 5200 does not apply to the Veteran’s left shoulder disability. 38 C.F.R. § 4.71a. DC 5202 provides ratings based on impairment of the humerus. As the lay and medical evidence shows no deformity of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union, nonunion, or loss of head of the humerus, the Board finds that DC 5202 does not apply. DC 5203 provides ratings based on impairment of the clavicle or scapula. While the Veteran has a history of a fracture of the left distal clavicle, the June 2020 examiner noted that the fracture is resolved. Furthermore, the maximum rating allowable for dislocation of the clavicle or scapula of a minor extremity is 20 percent, so it is less advantageous than the current 20 percent rating assigned under DC 5201 (limitation of motion), which would allow for a higher rating if the left shoulder disability worsens in the future. As the lay and medical evidence shows no malunion, nonunion, or dislocation of the clavicle or scapula, or impairment of function of the contiguous joint, the Board finds that Diagnostic Code 5203 is not an appropriate code to rate the left shoulder disability. In addition, a 10 percent rating is the maximum rating provided under Diagnostic Code 5003 for one major joint (left shoulder). Id. For these reasons, the Board finds that the criteria for an initial rating in excess of 20 percent for the Veteran’s left shoulder disability have not been met at any time during the appeal period. In summary, the preponderance of the evidence reflects that no greater than a 20 percent rating is warranted for the Veteran’s service-connected left shoulder disability. Consequently, the benefit-of-the-doubt rule does not apply, and the appeal for a higher rating in this matter must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.