Citation Nr: 21023146 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-06 619 DATE: April 20, 2021 A disability rating in excess of 20 percent for the service-connected right shoulder status post right shoulder sternoclavicular separation and SLAP arthroscopic repair with scarring is denied. A compensable rating for the service-connected left foot great toe fracture is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s motion of the right arm has not been limited to halfway between the shoulder and side, i.e. flexion and/or abduction limited to 45 degrees or less, to include consideration of additional functional loss following repeated use and during flare-ups. 2. During the period on appeal, the Veteran’s left foot great toe fracture has not been manifested by symptoms approximating a moderately severe or severe foot injury. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for the service-connected right shoulder status post right shoulder sternoclavicular separation and SLAP arthroscopic repair with scarring have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.71a, Diagnostic Code 5024-5201. 2. The criteria for a compensable disability rating for the service-connected left great toe fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to February 2006. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied a disability rating in excess of 20 percent for a right shoulder status post right shoulder sternoclavicular separation and SLAP arthroscopic repair with scarring, denied a compensable rating for a left foot bunion, and denied a compensable disability rating for a left foot great toe fracture. In October 2013, VA received the Veteran’s Notice of Disagreement (NOD). In December 2015, the RO issued a Statement of the Case (SOC). In February 2016, VA received the Veteran’s timely Form 9 appeal to the Board. In February 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. In July 2019 and July 2020, the Board remanded the case for further development and adjudicative action. In a September 2020 rating decision, the RO increased the disability rating for the left foot bunion from noncompensable to 10 percent, effective from December 29, 2011, the date of the Veteran’s claim for increased rating. This constitutes a full grant of benefits sought on appeal because 10 percent is the maximum disability rating available under 38 C.F.R. § 4.71a, Diagnostic Code 5280 and the grant is effective for the full period on appeal. Accordingly, the issue of entitlement to an increased rating for the left foot bunion is no longer on appeal or before the Board. In a December 2020 rating decision, the RO increased the disability rating for the left foot great toe fracture from noncompensable to 10 percent, effective from January 3, 2020. However, in a January 2021 rating decision, the RO concluded that the grant of a 10 percent disability rating for the left foot great toe fracture by the December 2020 decision was clear and unmistakable error (CUE) because the December 2020 decision failed to consider the 10 percent disability rating already assigned for the left foot bunion. As both ratings were based on pain of the left foot great toe, the RO concluded that assignment of a separate compensable rating for the left foot great toe fracture constituted impermissible pyramiding. 38 C.F.R. § 4.14. Accordingly, the RO discontinued the 10 percent disability rating for the left foot great toe fracture, effective from January 3, 2020. Although the January 2021 rating decision is not on appeal, this decision will necessarily consider whether assignment of a compensable rating for the left foot great toe fracture in conjunction with the 10 percent disability rating for the left foot bunion amounts to impermissible pyramiding. The December 2020 rating decision also granted service connection for right upper extremity peripheral neuropathy based on a December 2020 VA opinion that provided a nexus to the Veteran’s service-connected right shoulder. The RO assigned an initial disability rating of 40 percent, effective February 15, 2019. To date, the Veteran has not disagreed with the initial 40 percent rating assigned or its effective date. Accordingly, neither of those downstream issues are currently on appeal before the Board. Finally, during the February 2019 Board hearing, the Veteran testified that he had missed approximately six days of work at the U.S. Postal Service in the past year due to right shoulder symptoms and one day of work in the past year due to his left great toe symptoms. See February 2019 Board hearing transcript at 6, 12. However, the Veteran has not alleged, and the evidence does not show, that he has since lost employment or has been unable to maintain substantially gainful employment due to his service-connected disabilities during the period on appeal. Accordingly, no inferred claim for a TDIU has been reasonably raised. Increased Rating 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. See 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual 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. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, the regulations governing disability ratings for musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, although not all of the diagnostic criteria were affected. Any changes to the criteria that are applicable to the claims on appeal are indicated below. 1. Entitlement to a disability rating in excess of 20 percent for the service-connected right shoulder status post right shoulder sternoclavicular separation and SLAP arthroscopic repair with scarring. The Veteran seeks a disability rating in excess of 20 percent for his service-connected right shoulder status post right shoulder sternoclavicular separation and SLAP arthroscopic repair with scarring (hereinafter “right shoulder disability”). The Veteran’s right shoulder disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5024-5201. 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.  The hyphenated codes for the Veteran’s right shoulder disability reflect that tenosynovitis, tendinitis, tendinosis, or tendinopathy is the service-connected disability under Diagnostic Code 5024 and arm, limitation of motion of, is the basis of the rating assigned under Diagnostic Code 5201. Diagnostic Code 5201 provides a 20 percent rating for arm motion limited at the shoulder level, major or minor, a 30 and 20 percent rating for arm motion limited midway between the side and shoulder level, major and minor respectively, and a 40 and 30 percent rating for arm motion limited to 25 degrees from the side, major and minor respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003). Recent amendments to Diagnostic Code 5201, effective February 7, 2021, clarify that limitation of motion of the arm to shoulder level is equivalent to flexion and/or abduction limited to 90 degrees and limitation of motion to midway between side and shoulder level is equivalent to flexion and/or abduction limited to 45 degrees. 85 Fed. Reg. 76,453 (Nov. 30, 2020). See also, 38 C.F.R. § 4.71a, Diagnostic Code 5201 (effective February 7, 2021) As an initial matter, the Veteran is right-handed. See January 2020 VA examination report. Therefore, his right arm is the major extremity for VA rating purposes. During the February 2019 Board hearing, the Veteran testified to right shoulder pain, cracking, and popping, especially when lifting and reaching. Regarding his ability to reach “to put things on the shelf for a period of time,” he stated that “if I do it for like two or three minutes, my arm just completely stop[s].” Board hearing transcript at 3. Furthermore, he reported being able to lift his right arm to just below shoulder level. The Veteran indicated that he experienced flare-ups that were so severe that he could no longer pick up a “mailman’s letter bag” weighing “about thirty-five pounds” with his right arm. Id. at 4. Finally, he reported experiencing right arm numbness and pain radiating from the right shoulder area. As noted above, however, the RO assigned a separate compensable rating for the Veteran’s associated neurological impairment. The Veteran did not receive a VA examination for his right shoulder during the appeal period until January 2020. However, prior to the period on appeal, the Veteran received a VA examination for his right shoulder in March 2010. During that examination, the Veteran reported symptoms of stiffness, lack of endurance and pain. Furthermore, he reported pain when “moving and lifting the arm” and flare-ups – precipitated by physical activity – occurring daily and lasting for up to a full day with 6/10 pain severity. Flexion and abduction of the right shoulder were limited to 90 degrees with pain occurring at 90 degrees. External and internal rotation were both limited to 90 degrees. There was no additional functional loss after three repetitions. VA treatment records show that “pain in joint involving shoulder region” has been an active problem throughout the appeal period. See VA primary care follow-up note dated May 4, 2017. As noted above, the Veteran did not receive a new VA examination of his right shoulder until January 2020. During that examination, the Veteran described experiencing “stabbing pain” in the right shoulder. He indicated that flare-ups occurred “daily,” were “severe,” and had a duration of “1 day.” The flare-ups were precipitated by “lifting objects” and could not be alleviated. Flexion and abduction of the right shoulder were recorded as limited to 75 degrees. External rotation was limited to 40 degrees and internal rotation was limited to 65 degrees. After three repetitions, external rotation decreased to 25 degrees, but there were no other functional changes. The examiner estimated that there would be no additional functional loss after three repetitions or during flare-ups (excluding limitation of external rotation to 25 degrees). Although the examiner noted a possible rotator cuff condition, the Veteran was unable to perform any of the tests for rotator cuff conditions due to “not making the 90 degree requirement.” There was objective evidence of pain on passive range of motion testing of the right shoulder, but no objective evidence of pain on non-weightbearing. A February 2020 private medical record submitted by the Veteran shows that the Veteran had “full range of motion” of the shoulder but had pain “with cross-body adduction.” A Hawkins test was positive for a rotator cuff condition and the record references an MRI that revealed a partial rotator cuff tear. See February 2020 private musculoskeletal visit record. There is no evidence of right shoulder ankylosis at any time during period on appeal. Based on the foregoing, a disability rating in excess of 20 percent for the service-connected right shoulder disability is not warranted. Specifically, at no time during the period on appeal has right arm motion been limited to halfway between the shoulder and side, i.e. limitation to 45 degrees. Flexion and abduction of the right arm were limited to no less than 75 degrees, to include consideration of repeated use over time and during flare-ups. While limitation to 75 degrees is less than limitation to 90 degrees, or shoulder level, the criteria for the next higher rating are not met. More specifically, the Veteran’s limitation of shoulder motion more nearly approximates motion limited to shoulder level, rather than motion limited to 45 degrees. Entitlement to compensation under other Diagnostic Codes has been considered, including Diagnostic Code 5203 (impairment of clavicle or scapula). As indicated above, the Veteran has a history of sternoclavicular separation. However, the maximum rating under Diagnostic Code 5203 is 20 percent. As the Veteran’s right shoulder disability is already rated as 20 percent disabling under Diagnostic Code 5201, no analysis of whether a higher rating is warranted under Diagnostic Code 5203 is warranted. Accordingly, the criteria for a disability rating in excess of 20 percent for the service-connected right shoulder disability have not been met. 2. Entitlement to a compensable rating for the service-connected left foot great toe fracture. The Veteran contends that a compensable disability rating is warranted for his service-connected left foot great toe fracture. The Veteran’s left foot great toe fracture is currently rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under Diagnostic Code 5284, a 10 percent disability rating is provided for a moderate foot injury. A 20 percent disability rating is provided for a moderately severe foot injury. A 30 percent disability rating is provided for a severe foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. Words such as “severe” and “moderate” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. In this case, the Veteran has a diagnosis of degenerative arthritis of the left great toe. See VA podiatry consult dated August 27, 2019. Degenerative arthritis established by x-ray findings is rated under Diagnostic Code 5003, and is based on limitation of motion of the affected joint or joints. When limitation of motion is noncompensable under a limitation of motion code, but there is satisfactory evidence of painful motion, as is the case here, a 10 percent rating may be assigned for each major joint or group of minor joints so affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent. If there are occasional incapacitating exacerbations, a 20 percent rating is assigned for the arthritis without limitation of motion involving two or more major joints or two or more minor joint groups with incapacitating episodes. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Under 38 C.F.R. § 4.45, for purposes of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae are considered groups of minor joints. During the February 2019 Board hearing, the Veteran testified to left toe pain and swelling, especially after walking “thirteen miles a day” as a letter carrier for the U.S. Postal Service. See February 2019 Board hearing transcript at 9-10. He reported use of orthotics and described them as working “really well.” Id. at 13 During the period on appeal, the Veteran received an initial VA examination for his left foot disabilities in October 2012. The examiner provided diagnoses of hallux valgus and “S/P stress fracture.” During the examination, the Veteran reported onset of both symptoms from the left foot bunion and left foot great toe fracture as beginning in 2004. Furthermore, regarding the left foot great toe fracture, he indicated that the “condition occurred insidiously with onset of pain over time with activities, such as running; evaluation revealed stress fracture.” Moreover, the Veteran indicated regular use of bilateral shoe inserts “to relieve discomfort during ambulation.” However, the examiner did not report that the Veteran experienced active symptoms from the left foot great toe fracture, instead finding that the disability was “quiescent.” The Veteran received another VA podiatric examination in April 2017. However, this examination was devoted primarily to the right foot. Nevertheless, at the time of the examination, the Veteran reported “pain on both feet along the big toes” and “walking pain on both feet.” Additionally, he indicated use of arch supports for both feet effecting relief of symptoms. The Veteran denied flare-ups. There was pain on examination of the left foot. However, the Veteran was “able to tip toe and walk on heels.” The examiner recorded severity of symptoms from foot injuries for both feet as mild to moderate. There was no functional loss attributable to the left lower extremity. Nonetheless, the examiner indicated that the Veteran would have “difficulty [with] prolonged walking.” However, this impairment was not attributed to one or any combination of foot disabilities. An August 2019 x-ray of the Veteran’s left foot showed degenerative arthritis in the first metatarsophalangeal (MTP) joint in the left great toe. See VA podiatry consult dated August 27, 2019. Finally, the Veteran most recently received a VA examination for his left foot in January 2020. The examiner provided diagnosis of left foot hallux valgus and left foot great toe fracture. During this examination, the Veteran reported pain, described as “shooting in nature with burning,” that “does not affect activities.” Regarding flare-ups, he indicated daily occurrence of flare-ups that were moderate in severity and lasting for one day; these flare-ups were precipitated by walking and alleviated by rest. Functional loss after repeated use over time included “decreased ambulation during flares.” The examiner recorded that the Veteran’s symptoms from the left foot great toe fracture were mild in severity. However, the examiner noted that the left foot great toe fracture chronically compromised weight bearing. Again, there was pain of the left foot on physical examination. Based on the foregoing, assignment of a compensable rating in conjunction with the currently assigned 10 percent disability rating for the left foot bunion would amount to impermissible pyramiding. First, with regard to the arthritis of the left great toe, arthritis of a single MTP joint in the left foot is an inadequate basis for a compensable rating for arthritis. In this regard, under the express language of 38 C.F.R. § 4.45(f), more than one minor joint must be affected to warrant a compensable rating for arthritis with noncompensable limitation of motion, or no limitation of motion. See Spicer v. Shinseki, 752 F.3d 1367 (Fed. Cir. 2014). Therefore, as the Veteran’s degenerative arthritis of the left great toe only affects a single minor joint, no further consideration of a rating for arthritis is warranted. Importantly, the rule against pyramiding prohibits the assignment of separate disability ratings for the same symptom. In other words, the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14. It is possible to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). (Continued on the next page)   In this regard, the evidence shows that both disabilities are manifested by pain and swelling of the left foot great toe. Therefore, only one disability rating is warranted for the two disabilities. However, 38 C.F.R. § 4.14 (avoidance of pyramiding) does not preclude assignment of a higher disability rating for the left foot great toe fracture in place of the 10 percent disability rating for the left foot bunion currently assigned. In other words, if a disability rating in excess of 10 percent is warranted under another appropriate diagnostic code based on all of the symptoms attributable to both disabilities, such may be assigned signed in lieu of the currently assigned 10 percent rating under Diagnostic Code 5280. In this case, however, a disability rating in excess of 10 percent is not warranted for the service-connected left foot great toe fracture under a separate diagnostic code in lieu of the 10 percent rating currently assigned under Diagnostic Code 5280. Specifically, the Veteran’s symptoms from the left foot great toe fracture do not more closely approximate symptoms of a moderately severe or severe foot injury, or complete loss of the foot. No examiner opined during the period on appeal was greater than moderate in severity. Although functional impairments included pain on weight-bearing and after prolonged walking, the evidence shows that the functional impact of the left great toe fracture did not prevent the Veteran from walking up to 13 miles per day as a letter carrier and that the pain was relieved by orthotics. Given the above, a disability rating in excess of 10 percent is not warranted for the left foot great toe fracture. Accordingly, no revision of the ratings of the left foot great toe is warranted and the noncompensable disability rating for the left foot great toe fracture must remain in effect. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.