Citation Nr: 21021605 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-20 217 DATE: April 13, 2021 ORDER Entitlement to an initial disability rating of 30 percent from April 21, 2011, but no higher, for degenerative joint disease (DJD) of the right shoulder is granted. Entitlement to an initial disability rating of 20 percent from April 21, 2011, but no higher, for degenerative disc disease (DDD) of the cervical spine is granted. FINDINGS OF FACT 1. The Veteran’s right-dominant shoulder is not manifested by limitation of motion to 25 degrees or less from the side, ankylosis, impairment of the humerus, or impairment of the clavicle and scapula. 2. The Veteran’s DDD of the cervical spine exhibited forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent for right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5201. 2. The criteria for a disability rating of 20 percent cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from February 1968 to February 1970. In June 2017 the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In a July 2019 Decision, the Board, in pertinent part, denied: (a) an increased rating above 10 percent prior to May 23, 2016, for the right shoulder DJD; (b) an increased rating above 20 percent since May 23, 2016, for the right shoulder DJD; (c) an increased rating above 10 percent prior to June 6, 2017, for cervical spine DDD; and (d) an increased rating above 20 percent since June 6, 2017, for cervical spine DDD. In a September 2020 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the parts of the July 2019 Board Decision that denied: (a) an increased rating above 10 percent prior to May 23, 2016, for the right shoulder DJD; (b) an increased rating above 20 percent since May 23, 2016, for the right shoulder DJD; (c) an increased rating above 10 percent prior to June 6, 2017, for cervical spine DDD; and (d) an increased rating since June 6, 2017, for cervical spine DDD. In a February 2021 Rating Decision, the agency of original jurisdiction (AOJ), in pertinent part: (a) increased the right shoulder DJD rating from 10 percent to 20 percent prior to May 23, 2016; (b) increased the right shoulder DJD rating from 20 percent to 30 percent effective May 23, 2016. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Right shoulder The Veteran seeks a higher initial disability rating for his service-connected right shoulder disability. The Veteran’s service-connected right shoulder disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201, effective from April 21, 2011 and 30 percent from May 23, 2016. The applicable rating period is from April 21, 2011, the effective date for the award of service connection through the present. See 38 C.F.R. § 3.400. Musculoskeletal impairment of the bilateral shoulder, including limitation of motion, is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. Different ratings are available for the dominant (major) and non-dominant (minor) side. Here, the Veteran is right-hand dominant. The Veteran’s right shoulder disability is rated under Diagnostic Codes 5003-5201. Diagnostic Code 5003 (degenerative arthritis) rates by analogy to limitation of motion of the joint affected. Diagnostic Code 5003 also provides a 10 percent rating where limitation of motion cannot be objectively confirmed. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. 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. Prior to the regulatory change, under Diagnostic Code 5201, limitation of motion of the arm at the shoulder, provides for a 20 percent rating when the range of motion of the minor and major arm is limited at the shoulder level. A 30 percent rating for the major arm and 20 percent rating for the minor arm when the range of motion is limited midway between side and shoulder level. A 40 percent rating for the major arm and 30 percent rating for the minor arm when the range of motion is limited to 25 degrees from side. 38 C.F.R. § 4.71a. After the regulatory change, under Diagnostic Code 5201, limitation of motion of the arm at the shoulder level (flexion and/or abduction limited to 90 degrees), provides for a 20 percent rating when the range of motion of the minor and major arm is limited at the shoulder level. A 30 percent rating for the major arm and 20 percent rating for the minor arm when the range of motion is limited midway between side and shoulder level (flexion and/or abduction limited to 45 degrees. A 40 percent rating for the major arm and 30 percent rating for the minor arm when the range of motion is limited to flexion and/or abduction limited to 25 degrees from side. 38 C.F.R. § 4.71a. The normal range of motion of the shoulder is 0 to 180 degrees of flexion (forward elevation), 0 degrees to 180 degrees of abduction, 0 degrees to 90 degrees of external rotation, and 0 degrees to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. On VA shoulder and arm conditions DBQ in October 2012, the Veteran’s complaints included constant right shoulder pain “made worse with range of motion.” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. An in-service right shoulder injury following a parachute jump was reported. The Veteran was right-hand dominant. He denied experiencing flare-ups of right shoulder pain. Range of motion testing of the right shoulder showed flexion to 180 degrees with objective evidence of painful motion beginning at 180 degrees and abduction to 180 degrees with objective evidence of painful motion beginning at 180 degrees. There was no additional limitation of motion on repetitive testing. Physical examination of the right shoulder showed functional loss or functional impairment due to weakened movement and pain on movement, tenderness to palpation, no guarding, 4/5 muscle strength, no ankylosis, positive Hawkins impingement test, positive empty-can test, positive external rotation/infraspinatus test, positive lift-off subscapularis test, no history of recurrent dislocation or subluxation, negative crank apprehension test, no tenderness to palpation of the acromioclavicular joint, and positive cross-body adduction test. X-rays showed arthritis. The diagnosis was degenerative joint disease of the right shoulder. On VA outpatient treatment in August 2013, the Veteran’s complaints included “bilateral shoulder pain” which he rated as 7/10 on a pain scale. Range of motion testing of the right shoulder showed abduction to 110 degrees “after repeated attempts with associated discomfort.” The diagnosis included chronic right shoulder pain/degenerative joint disease of glenohumeral joint. On VA shoulder and arm conditions DBQ in February 2015, the Veteran’s complaints included right shoulder pain which he rated as 7-8/10 on a pain scale. A history of bilateral shoulder pain, right greater than left, was noted. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran was right-hand dominant. He denied experiencing any flare-ups of shoulder pain. Range of motion testing was normal with pain reported but not causing functional loss. There was no additional limitation of motion on repetitive testing. There was no evidence of pain with weight bearing. Physical examination of the right shoulder showed tenderness to palpation on the anterior shoulder, 5/5 muscle strength, no muscle atrophy or ankylosis, and no rotator cuff condition, shoulder instability, or dislocation. X-rays showed arthritis. On VA shoulder and arm conditions DBQ in March 2018, the Veteran’s complaints included neck pain which radiated down into his right shoulder and worsened with “strenuous activity and lifting.” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran experienced some pain relief from “trigger point” injections in his right shoulder. He rated his right shoulder pain as 6/10 on a pain scale. He denied experiencing flare-ups of right shoulder pain. He stated, “Without the shots, everything would be difficult: driving, making up the bed, trying to cook, planting in the yard.” Range of motion testing of the right shoulder showed flexion to 77 degrees and abduction to 62 degrees with functional loss manifested by limited lifting, carrying, standing, walking, and reaching. Physical examination of the right shoulder showed pain with weight bearing, tenderness to palpation of the shoulder joint, 5/5 muscle strength, no muscle atrophy, no shoulder instability or dislocation, no clavicle scapula or AC joint conditions, no impairment of the humerus, and a suspected rotator cuff condition. X-rays showed arthritis. The VA examiner was unable to perform repetitive range of motion testing or assess whether crepitus was present in the Veteran’s right shoulder due to pain. Active range of motion testing of the right shoulder in non-weight bearing showed flexion to 110 degrees. Passive range of motion testing of the right shoulder in weight bearing showed flexion to 76 degrees and abduction to 51 degrees. Passive range of motion testing of the right shoulder in non-weight bearing showed flexion to 87 degrees and abduction to 55 degrees. “All maneuvers were painful.” There was evidence of pain on passive range of motion testing and when the right shoulder joint was used in non-weight bearing. The diagnosis was degenerative arthritis of the right shoulder. Due to the Veteran’s inability to complete repetitive use testing of the right shoulder due to pain during the March 2018 VA examination an addendum opinion was provided in January 2021. The January 2021 VA examiner opined that the Veteran’s right shoulder range of motion after repeated use over time would be diminished to flexion of 67 degrees and abduction to 52 degrees. During flare-ups right shoulder range of motion would be diminished to flexion of 57 degrees and abduction to 42 degrees. Based on the review of the records, the Board finds that under Diagnostic Code 5201 the Veteran’s right shoulder disability is consistent with a rating 30 percent, but no higher, throughout the appeal. The Board notes the October 2012 and February 2015 right shoulder examinations were found to be inadequate. Accordingly, the Board finds the March 2018 examination and the January 2021 addendum opinion provide evidence that is most appropriate for rating the Veteran’s right shoulder disability throughout the appeal. As opined by the January 2021 VA examiner, the Veteran’s abduction and/or flexion of his right shoulder is at its worst, 42 degrees, even when considering diminished range of motion after repeated use over time or during flare-ups. This is consistent with midway between side and shoulder level. The Veteran is not entitled to a rating in excess of 30 percent for the right shoulder as the next higher disability rating requires limitation of motion to 25 degrees from the side which is not noted in the record. The Board finds that the Veteran is not entitled to a rating under Diagnostic Codes 5202 and 5203 as there is no evidence of recurrent dislocation of the scapulohumeral joint or malunion of the humerus, clavicle, or scapula. Ankylosis of the right shoulder has not been shown, thus Diagnostic Code 5200 is not proper. 2. Cervical spine disability The Veteran seeks a higher initial disability rating for his service-connected cervical spine disability. The Veteran’s service-connected cervical spine disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242, effective from April 21, 2011 and 20 percent from June 6, 2017. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Diagnostic Code 5010 pertains to arthritis. Diagnostic Code 5242 pertains to degenerative arthritis of the spine. The applicable rating period is from April 21, 2011, the effective date for the award of service connection through the present. See 38 C.F.R. § 3.400. The Veteran’s disability is currently rated under Diagnostic Code 5241. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under Diagnostic Code 5242, a 20 percent rating is warranted 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. In addition, Diagnostic Code 5242 provide for ratings under either the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, which allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, DC 5242. For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Board notes that the evidence of records does not indicate the Veteran has had incapacitating episodes. Thus, the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. On VA neck (cervical spine) conditions DBQ in October 2012, the Veteran’s complaints included “constant pain to [the] cervical spine with radicular pain that runs down to the right shoulder and at times down the right arm[].” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran denied experiencing flare-ups of neck pain. Range of motion testing of the cervical spine showed forward flexion to 45 degrees with objective evidence of painful motion beginning at 45 degrees, extension to 45 degrees with objective evidence of painful motion beginning at 45 degrees, lateral flexion to 45 degrees with objective evidence of painful motion beginning at 45 degrees in each direction, and lateral rotation to 80 degrees with objective evidence of painful motion beginning at 80 degrees in each direction. There was no additional limitation of motion following repetitive testing. Physical examination showed functional loss or functional impairment due to pain on movement, tenderness to palpation, no muscle spasm or guarding, 5/5 muscle strength, no muscle atrophy, normal deep tendon reflexes and sensation, and intervertebral disc syndrome without incapacitating episodes. X-rays showed degenerative disc disease at C5-7 “with a disk osteophyte complex seen at these levels,” small hypertrophic osteophyte at C4, slight reversal of the normal lordotic curvature suggesting a soft tissue injury, and bilateral foramen narrowing. The diagnoses included degenerative disc disease of the cervical spine. VA MRI scan of the Veteran’s cervical spine taken in June 2013 showed disc bulges at C4-C7 and C7-T1 facet arthropathy with neuroforaminal narrowing. On VA outpatient treatment in August 2013, the Veteran’s complaints included “neck pain radiating down his right upper extremity” which he rated as 7/10 on a pain scale. He denied experiencing any bowel or bladder incontinence. Physical examination showed cervical paraspinal tenderness, muscle spasm, limited range of motion in the cervical spine, and a normal gait. The diagnoses included neck pain/multilevel degenerative disc disease and C4-C7 stenosis. In December 2014, the Veteran’s complaints included cervical radiculopathy. Physical examination showed a supple neck and a limited range of motion in the neck “due to flashes of pain.” The diagnoses included cervical radiculopathy. VA x-rays of the Veteran’s cervical spine taken in February 2016 showed slightly worsening slight reversal of the normal cervical lordosis “centered at C5-C6,” grade I anterolisthesis of C4 “related to C5 has worsened slightly,” marked disc space narrowing at C5-C7, and bilateral neural foraminal narrowing. VA MRI scan of the Veteran’s cervical spine taken in March 2016 showed degenerative disc disease and facet disease of the cervical spine “including several foci of moderate spinal stenosis with cord entrapment and mild contour deformity on the ventral cord, without findings of cord compression or cord signal change,” and multifocal foraminal narrowing which “likely affects multiple cervical nerve roots.” There was no “high-grade spinal stenosis and no findings of cord compression or cord signal change.” On VA neck (cervical spine) conditions DBQ in March 2018 the Veteran’s complaints included worsening neck pain with rotation of the neck and head and neck pain radiating to both shoulders. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran rated his neck pain as 7/10 on a pain scale and as 10/10 during flare-ups of neck pain. He described his flare-ups of neck pain as sharp and “sometimes dull” pain “pulsating in [the] upper back.” He experienced functional loss or functional impairment of the cervical spine which he described as being unable to get out of bed. Range of motion testing of the cervical spine showed forward flexion to 45 degrees with pain. The VA examiner stated that pain prevented repetitive range of motion testing. Physical examination of the cervical spine showed pain on weight bearing, tenderness to palpation, no guarding or muscle spasm, 5/5 muscle strength, no muscle atrophy, normal reflexes and sensation, no ankylosis, no other neurologic abnormalities, and intervertebral disc syndrome without incapacitating episodes. Active range of motion on non-weight bearing showed flexion to 32 degrees. Passive range of motion on weight bearing showed flexion to 52 degrees. Passive range of motion on non-weight bearing showed flexion to 45 degrees. “All maneuvers were painful.” There was evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. The diagnoses included degenerative disc disease of the cervical spine. Due to the Veteran’s inability to complete repetitive use testing of the cervical spine due to pain during the March 2018 VA examination an addendum opinion was provided in January 2021. The January 2021 VA examiner opined that the Veteran’s cervical spine range of motion after repeated use over time would be diminished to forward flexion of 35 degrees, extension to 16 degrees, right lateral flexion to 14 degrees, left lateral flexion to 5 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 29 degrees. During flare-ups cervical spine range of motion would be diminished to forward flexion of 25 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 20 degrees. Based on the review of the records, the Board finds that under Diagnostic Code 5242 the Veteran’s cervical spine disability is consistent with a rating 20 percent, but no higher, throughout the appeal. The Board notes the October 2012 cervical spine examination was found to be inadequate. Accordingly, the Board finds the March 2018 examination and the January 2021 addendum opinion provide evidence that is most appropriate for rating the Veteran’s cervical spine disability throughout the appeal. The Board finds that the preponderance of the evidence is against a disability rating in excess of 20 percent for a cervical spine disability. The medical record indicates forward flexion of the neck greater than 15 degrees. For example, at worst, forward flexion was estimated to 25 degrees during flare-ups, as noted in the January 2021 VA addendum opinion. No ankylosis of any kind has been shown. Therefore, in conjunction with the remaining medical evidence, the Veteran’s cervical spine disability is best contemplated by the 20 percent rating criteria for the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.