Citation Nr: 21021744 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-20 845 DATE: April 13, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a left shoulder disability is denied. Entitlement to an initial rating in excess of 20 percent for a right shoulder disability is denied. FINDINGS OF FACT 1. The Veteran served on active duty from December 1975 to December 1981 and had additional periods of active service including Reserve service from February 20, 2001 to May 18, 2001; March 3, 2002 to April 12, 2002; July 6, 2002 to July 25, 2002; March 30, 2003 to April 25, 2003; June 23, 2003 to October 16, 2003; October 19, 2003 to November 21, 2003; February 2, 2004 to March 20, 2004; June 21, 2004 to July 23, 2004; October 18, 2004 to November 19, 2004; January 17, 2006 to March 1, 2006; April 1, 2006 to May 17, 2006; June 20, 2006 to September 1, 2006; January 21, 2007 to April 28, 2007; August 20, 2007 to September 29, 2007; January 14, 2008 to September 30, 2008 and from January 4, 2009 to September 30, 2009. 2. The most probative evidence reflects that the Veteran’s service-connected left shoulder rotator cuff tendonitis, status post arthroscopic debridement has been manifested by subjective complaints of sharp, intense pain and flareups of the left shoulder occurring with any activity and movement including any pushing, pulling, lifting or exercising; objective findings did not demonstrate limitation of motion of the arm midway between side and shoulder level or flexion and/or abduction limited to 25 degrees from side, with no evidence of intermediate ankylosis of the scapulohumeral articulation or fibrous union of the humerus. 3. The most probative evidence reflects that the Veteran’s service-connected right shoulder rotator cuff tendonitis, status post labral tear and SLAP repair and distal clavicle resection has been manifested by subjective complaints of constant pain and flareups of the right shoulder occurring with any activity and movement including any pushing, pulling, lifting or exercising: objective findings did not demonstrate limitation of motion of the arm midway between side and shoulder level or flexion and/or abduction limited to 45 degrees, favorable ankylosis of the scapulohumeral articulation with abduction to 60 degrees, or impairment or recurrent dislocation of the humerus. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left shoulder tenosynovitis have not been met. 38 U.S.C. §§ 1110, 1113, 1131, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DCs 5024-5201 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463, (Nov. 30, 2020) (to be codified at 38 C. F. R. § 4.71a, DCs 5024, 5201). 2. The criteria for a rating in excess of 20 percent for right shoulder tenosynovitis have not been met. 38 U.S.C. §§ 1110, 1113, 1131, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DCs 5024-5201 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463, (Nov. 30, 2020) (to be codified at 38 C. F. R. § 4.71a, DCs 5024, 5201). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, the appeals were previously before the Board in November 2019 when they were remanded for additional development. They have now been returned to the Board for further appellate action. There has been substantial compliance with the remand directives, and there is no bar to proceeding with the appeal. Stegall v. West, 11 Vet. App. 268, 271. At the time, the Board also remanded appealed issues seeking to establish service connection for a low back disability and complications and chronic pain from placement of transvaginal mesh implants. However, the Veteran was subsequently awarded service connection these disabilities in rating decisions dated in June 2020 and July 2020, respectively. As stated in these rating decisions, the awards of service connection for these disabilities were construed as a complete grant of the service connection appeal, and thus, the matters are no longer in appellate status. Despite the above facts, for reasons unclear to the Board, the Agency of Original Jurisdiction (AOJ) included the issue of entitlement to an initial evaluation in excess of 40 percent for a service-connected low back disability in the July 2020 Supplemental Statement of the Case which readjudicated the remanded shoulder appeals. As the Veteran’s low back appeal was abrogated by the AOJ’s concurrent award for service connection for such, the Board considers the adjudication of entitlement to an increased initial evaluation for this disability in the July 2020 SSOC as a procedural nullity, as it does not confer jurisdiction to the Board regarding this issue. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Archbold v. Brown, 9 Vet. App. 124, 130 (1996). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Left and Right Shoulder Tenosynovitis The Veteran’s bilateral shoulder disability is currently rated under DC 5024-5201, for tenosynovitis. 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. With regard to the Veteran’s shoulder disabilities, under the pre-amended regulation, DC 5024 provides that tenosynovitis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Under the revised criteria, DC 5024 provides that tenosynovitis, tendonitis, or tendinopathy will be rated as degenerative arthritis, based on limitation of motion of the affected parts. Thus, she was properly rated at 20 percent under DC 5201 for bilateral shoulder tenosynovitis. However, the Board will consider all potentially relevant diagnostic codes in assessing the merits of this appeal. Left Shoulder In this case, the Veteran’s left shoulder has been found to be her minor or non-dominant extremity for purposes of evaluation. Under the pre-amended regulations, an increased rating is warranted upon evidence of the following: • Intermediate ankylosis between favorable and unfavorable of the scapulohumeral articulation (30 percent under DC 5200); or • Limitation of the motion of the arm to 25 degrees from side (30 percent under DC 5201). • fibrous union of the major humerus (40 percent under DC 5202). Under the revised criteria, an increased rating is warranted upon evidence of the following: • Intermediate ankylosis between favorable and unfavorable of the scapulohumeral articulation (30 percent under DC 5200); or • Flexion and/or abduction limited to 25 degrees from side (30 percent under DC 5201). Upon careful review of the evidence of record, the objective medical evidence and lay statements regarding the Veteran’s symptomatology more nearly approximate symptoms associated with no more than a 20 percent rating for the entire period on appeal. First, ankylosis has not been shown. Ankylosis is defined as a fixation of the joint; however, while motion has been reported as limited, it is not shown that his shoulder joint is ankylosed. Therefore, a higher rating under DC 5200 is not warranted. Next, limitation of motion to support a higher rating has not been shown. Of note, normal flexion of the shoulder is 0-180 degrees, normal abduction is 0-180 degrees, normal external rotation is 0 to 90 degrees, and normal internal rotation is 0 to 90 degrees. On an October 2014 VA DBQ, the Veteran reported flareups and functional impairment of the left shoulder. She described experiencing flareups multiple times a week as sharp intense pain. Range of motion testing showed flexion to 175 degrees, and abduction ending at 180 degrees. Range of motion did not contribute to functional loss. However, pain was observed with flexion and abduction. Repetitive use did not result in additional loss of motion. Further, there was no ankylosis or malunion of the humerus with marked deformity, or recurrent dislocation. On an April 2016 VA treatment record the Veteran reported constant pain superior in the region of the long head of the biceps and lateral. Range of motion testing showed flexion to 100 degrees and abduction ending at 90 degrees. On a November 2019 VA DBQ, the Veteran reported constant “at rest” dull pain of both shoulders. She described flareups of the left shoulder occurring with any activity and movement including any pushing, pulling, lifting or exercising. The left shoulder flare-ups were a moderate burning pain rated at a high 7/10 “like fire crackers.” Range of motion testing showed flexion to 90 degrees and abduction ending at 60 degrees. However, pain was observed with flexion and abduction. Repetitive use resulted in additional loss of motion. Upon repetitive use, the Veteran’s flexion ended at 80 degrees and abduction ended at 50 degrees. Further, there was no ankylosis, malunion of the humerus with marked deformity, or recurrent dislocation of the humerus at the scapulohumeral joint. As limitation of the arm to 25 degrees from the side is not shown, even accounting for pain, a higher rating under DC 5201 is not warranted. With respect to the amended criteria, the medical evidence does not show flexion and/or abduction limited to 25 degrees from side. Next, a higher rating may be available with fibrous union of the major humerus. As noted, the left shoulder is the minor humerus so DC 5202 is not for application. Moreover, a fibrous union of the humerus was specifically found to be not present in the October 2014 nor the November 2019 VA examination. Upon review of the above, a rating in excess of 20 percent is not warranted for the Veteran’s left shoulder disability. During the rating period on appeal, her disability manifested by constant left shoulder pain with flareups of the left shoulder occurring with any activity and movement including any pushing, pulling, lifting or exercising. Instead, her flexion and abduction were at worst, 90 and 60 degrees upon examination. Upon repetitive use, the Veteran’s flexion and abduction were at worst, 80 and 50 degrees. Symptoms warranting a higher rating, including ankylosis and fibrous union of the humerus, are totally absent from the record, as are such factors as incoordination or fatigability. The medical evidence does not support a higher rating. Right Shoulder In this case, the Veteran’s right shoulder has been found to be her major or dominant extremity for purposes of evaluation. Under the pre-amended regulations, an increased rating is warranted upon evidence of the following: • Favorable ankylosis of the scapulohumeral articulation, with abduction to 60 degrees and an ability to reach the mouth and head (30 percent under DC 5200) • Limitation of the motion of the arm midway between side and shoulder level (30 percent under DC 5201); • Recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements (30 percent under DC 5202); or • Malunion of the humerus with marked deformity (DC 30 percent under DC 5202). Under the revised criteria, an increased rating is warranted upon evidence of the following: • Favorable ankylosis of the scapulohumeral articulation, with abduction to 60 degrees and an ability to reach the mouth and head (30 percent under DC 5200) • Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) (30 percent under DC 5201); • Recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements (30 percent under DC 5202); or • Malunion of the humerus with marked deformity (DC 30 percent under DC 5202). Upon careful review of the evidence of record, the objective medical evidence and lay statements regarding the Veteran’s symptomatology more nearly approximate symptoms associated with no more than a 20 percent rating for the entire period on appeal. On an October 2014 VA DBQ, the Veteran reported flareups and functional impairment of the right shoulder. Range of motion testing showed flexion to 175 degrees, abduction ending at 180 degrees. Range of motion did not contribute to functional loss. However, pain was observed with flexion and abduction. Repetitive use did not result in additional loss of motion. Further, there was no ankylosis or malunion of the humerus with marked deformity, or recurrent dislocation. On an April 2016 VA treatment record the Veteran reported constant pain superior in the region of the long head of the biceps and lateral. Range of motion testing showed flexion to 90 degrees and abduction ending at 80 degrees. On a July 2016 VA treatment record, the Veteran reported pain with sudden motion of the shoulder, pain with elevation of the shoulder, pain radiating from the shoulder to the elbow. Range of motion testing showed flexion to 75 degrees and abduction ending at 45 degrees. On an August 2016 VA treatment record, the Veteran complained of throbbing pain anteriorly 6 weeks status post op right shoulder arthroscopy SAD and rotator cuff repair. Range of motion testing showed flexion to 75 degrees and abduction ending at 60 degrees. On a November 2016 VA treatment record, the Veteran complained pain shooting along the arm from the bicep area to the wrist after pushing some jeans back on the shelf at work. Range of motion testing showed flexion to 75 degrees and abduction ending at 60 degrees. On a November 2019 VA DBQ, the Veteran reported constant “at rest” dull pain of both shoulders. She described flareups of the right shoulder as a moderate burning pain rated at a high 7/10 “like fire crackers.” She indicated that the right shoulder flareups were precipitated by with any activity and movement including any pushing, pulling, lifting or exercising. The right shoulder flare-ups were alleviated by “heat does help more than ice.” Range of motion testing showed flexion to 130 degrees and abduction ending at 80 degrees. However, pain was observed with flexion and abduction. Repetitive use resulted in additional loss of motion. Upon repetitive use, the Veteran’s flexion ended at 100 degrees and abduction ended at 70 degrees. Further, there was no ankylosis, malunion of the humerus with marked deformity, or recurrent dislocation of the humerus at the scapulohumeral joint. Based on the above, the medical evidence does not provide a basis upon which to grant the appeal. Throughout the entire rating period, the Veteran’s right shoulder disability primarily manifested by constant dull pain. The existence of more severe symptoms such as ankylosis, malunion of the humerus with marked deformity, or recurrent dislocation, were explicitly denied by the October 2014 and November 2019 VA examiners and do not otherwise appear in the record. Although some limitation of motion has been observed, she is not so impaired as to be unable to raise her arm midway between side and shoulder level. With respect to the amended criteria, flexion and/or abduction was not limited to 45 degrees. Therefore, the medical evidence does not support a higher rating. With respect to all claims for increased ratings, the Board has also considered the Veteran’s lay statements that her disability is worse. While she is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords these medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.