Citation Nr: 21022301 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-42 174 DATE: April 15, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for a service-connected left shoulder disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s left shoulder disability results in limitation of flexion and/or abduction to 25 degrees from the side. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for service-connected left shoulder disability are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5201 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1959 to November 1963, with subsequent Reserve service. Following the January 2021 statement of the case, additional evidence was added to the record that has not been considered by the agency of original jurisdiction (AOJ). However, the evidence is not pertinent to the issue presently on appeal as it concern the nature and severity of the Veteran’s left shoulder disability in 1998 which is well outside the present appeal period. Therefore, there is no prejudice in the Board proceeding to the merits of the Veteran’s appeal. 38 C.F.R. § 19.31(b) (2020). Entitlement to a disability rating in excess of 20 percent for a left shoulder disability is denied. The Veteran seeks a rating higher than 20 percent for his service-connected left shoulder disability. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran is service connected for a left shoulder disability under Diagnostic Code 5201-5010. 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. 38 C.F.R. § 4.27. Under Diagnostic Code 5201, ratings are determined differently based on whether the condition affects the major or minor joint (i.e., dominant or non-dominant side). The Veteran’s medical record demonstrates that the Veteran’s right side is his dominant side, therefore, in evaluating the left shoulder, the ratings for the minor joint apply. 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). 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 regular for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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, Diagnostic Code 5010 Arthritis, due to trauma, substantiated by X-ray findings was rated as arthritis, degenerative. As of February 7, 2021, under the amended criteria, Diagnostic Code 5010 Post-Traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Diagnostic Code 5003, for degenerative arthritis (also applicable to traumatic arthritis under Code 5010), provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. Prior to the regulatory change, Diagnostic Code 5201 provided a rating for the major joint of 40 percent for arm motion limited to 25 degrees from the side, 30 percent for arm motion limited to midway between the side and shoulder level, and 20 percent for arm motion limited to shoulder level. For the minor joint, a 20 percent rating was warranted for arm motion limited to shoulder level. A rating of 20 percent was also warranted for arm motion limited to midway between the side of the body and shoulder level. A rating of 30 percent was warranted for arm motion limited to 25 degrees from the side of the body. As of February 7, 2021, under the amended criteria, with respect to the major joint, Diagnostic Code 5201 provides for a 40 percent rating for flexion and/or abduction limited to 25 degrees from side, a 30 percent rating for arm motion limited to midway between the side of the body and shoulder level (flexion and/or abduction limited to 45 degrees), and a 20 percent rating for arm motion limited to shoulder level (flexion and/or abduction limited to 90 degrees). For the minor joint, a 30 percent rating is warranted for flexion and/or abduction limited to 25 degrees from side, a 20 percent rating is warranted for midway between side and shoulder level (flexion and/or abduction limited to 45 degrees), and a 20 percent rating is warranted for shoulder level (flexion and/or abduction limited to 90 degrees). Normal shoulder flexion is 180 degrees. Normal abduction is 180 degrees. Normal internal and external rotation is 90 degrees. 38 C.F.R. § 4.71, Plate I. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. at 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). By way of background, the Veteran filed the present claim for an increased rating in November 2010. In August 2017, the Board remanded the issue on appeal for further development. While the matter was in remand status, in a September 2019 rating decision, the AOJ increased the Veteran’s evaluation for the left shoulder disability to 20 percent, effective November 4, 2010, the date of the increased rating claim. As that award did not represent a total grant of benefits sought on appeal, the claim for increased remained before the Board. In April 2020, the Board again remanded the issue for further development. Thereafter, the Veteran underwent a VA examination in April 2011. However, the April 2011 examination report did not include range of motion findings for passive motion, weight-bearing, or non-weight-bearing. The Veteran underwent another VA examination in February 2019. In the February 2019 examination report, the examiner reported that the Veteran’s left shoulder had the same range of motion in active and passive motion, but they did not provide range of motion measurements of the left shoulder in weight-bearing or non-weight-bearing. Additionally, while both the April 2011 and February 2019 VA examiners noted pain on motion of the left shoulder, the point during range of motion where pain started was not noted. Therefore, neither the April 2011 nor the February 2019 VA examination was adequate for adjudication purposes. The Veteran underwent a VA examination in December 2020. On physical examination, the Veteran reported that he gets flare ups in the cold and with lifting. He reported functional loss/impairment and stated that he “can’t lift anything.” Upon examination, his left shoulder flexion was limited to 110 degrees and abduction was limited to 120 degrees. He had full range of motion with external and internal rotation bilaterally. The range of motion itself did not contribute to a functional loss, but pain with flexion and abduction were noted on examination and caused functional loss. Bilaterally, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing, and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. He was not examined immediately after repetitive use over time. The examination was medically consistent with the Veteran’s statement describing his functional loss with repetitive use over time. Pain, fatigue, and weakness significantly limits his functional ability with repeated use over time. The VA examiner was able to describe this functional loss in terms of range of motion as limitation of flexion to 100 degrees and limitation of abduction to 115 degrees in the left shoulder. The Veteran had full range of motion bilaterally with external and internal rotation. The examination was not conducted during a flare up, but the examination was medically consistent with the Veteran’s statements describing functional loss during flare up. Pain, fatigue, and weakness significantly limits the Veteran’s functional ability with flare ups. This was described in terms of range of motion as limitation of flexion to 100 degrees and limitation of abduction to 115 degrees in the left shoulder. There were no other additional contributing factors of disability in either shoulder. The Veteran had 4/5 strength with both forward flexion and abduction bilaterally, but no muscle atrophy, no ankylosis, instability, dislocation, or labral pathology suspected in either shoulder. Rotator cuff conditions were suspected in both the left and right shoulder, and the Veteran had positive Hawkins’ impingement tests, empty-can tests, external potation/infraspinatus strength tests, and lift-off subscapularis tests bilaterally. Acromioclavicular (AC) joint osteoarthritis was suspected in the left shoulder, and the condition affects his range of motion of the shoulder. There was tenderness on palpation of the AC joint, and a cross-body adduction test was positive. The VA examiner noted no conditions or impairments of the humerus, no history of surgical procedures, and no other pertinent physical findings. The Veteran does not use any assistive devices. The VA examiner noted that diagnostic imaging supported a diagnosis of left AC joint arthritis. The examiner further noted that the Veteran’s diagnosed condition impacts his ability to work to the extent that he is unable to perform any job occupation requiring reaching or overhead reaching. The VA examiner noted that there was objective evidence of pain when both the right and left shoulder are used in non-weight bearing, and the passive range of motion for each shoulder was the same as its active range of motion. The record indicates that the Veteran has reported pain in the left shoulder; in March 2019, he reported that the shoulder pain, “is as bad as it’s been now.” See March 2019 VA treatment records. The Board notes that painful motion is contemplated in the rating criteria for limitation of motion. Based on the physical measurements at examination, the Veteran’s ability to raise his arm is, at most, limited to 100 degrees. The Board takes notice that the normal range of motion for flexion and abduction are to 180 degrees, indicating that the arm is raised in a parallel to the side of the body. Therefore, flexion or abduction to shoulder level, i.e. perpendicular to the side of the body, is 90 degrees. See 38 C.F.R. § 4.71, Plate I. Accordingly, the Veteran’s ability to raise his arm to 100 degrees means that his motion is limited, at most, to slightly above shoulder level. Thus, based on the evidence, a rating in excess of 20 percent is not warranted for the left shoulder disability. Though the December 2020 VA examination did not evaluate the Veteran during a flare up, the VA examiner was able to describe his functional ability with flare up in terms of range of motion, as discussed above. There is no indication that the Veteran’s range of motion was limited to shoulder level. Indeed, the range of motion findings demonstrated that the Veteran was capable of raising his arm above shoulder level, or the 90-degree point. However, given that there is objective evidence of painful motion, a minimum rating of 20 percent is still warranted. The Board has considered whether a higher rating may be assigned under provisions other than limitation of motion. However, in the absence of ankylosis, impairment of humerus, clavicle, or scapula to include dislocation, malunion, and nonunion, a higher rating under any other provision is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, and 5203. Therefore, based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s left shoulder disability warrants a rating in excess of 20 percent. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.