Citation Nr: 21023329 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-44 054 DATE: April 20, 2021 ORDER A rating in excess of 20 percent for a right shoulder disability is denied. REMANDED Entitlement to service connection for residuals of a back injury, including the cervical and lumbosacral spine, is remanded. FINDING OF FACT The Veteran’s right shoulder disability is manifested by pain in the major extremity resulting in the inability to make above-the-shoulder motions during flare-ups. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201-5019. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1977 to March 1980. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a Board video conference hearing. The transcript of the hearing has been associated with the record. The Board remanded these issues for further development in September 2020. A Board remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The requested VA examination to determine the current nature and severity of the right shoulder disability was completed, and no further action to ensure compliance with the remand directives is required. Id. Unfortunately, although an addendum opinion was provided regarding the cervical and lumbosacral spine disabilities, there has not been substantial compliance with the Board’s previous remand directives. Another remand to address the etiology of the cervical and lumbosacral spine disabilities is required. Increased Rating 1. Right shoulder. The Veteran contends that he is entitled to a higher rating because his right shoulder disability has increased in severity. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating a disability, the current examination reports in light of the whole recorded history are considered to ensure that the current rating accurately reflects the severity of the disorder. The medical and industrial history are to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on VA benefits claims is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information, including lay and medical evidence of record, in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran’s right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201-5019, for limitation of motion of the arm and bursitis. Diagnostic Code 5019 for bursitis requires evaluating the disability based on the affected parts’ limitation of motion. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 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.”). 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). 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 testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion 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. A December 2020 VA examination confirmed the diagnosis of right shoulder impingement syndrome and revealed symptoms of the Veteran’s right shoulder disability were worse than in prior VA examinations. Right arm flexion was limited to 130 degrees, abduction was limited to 110 degrees, external rotation was limited to 80 degrees, and internal rotation was limited to 40 degrees. The December 2020 examination was found to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The Veteran was able to perform repetitive-use testing with at least three repetitions and had no additional loss of function or range of motion after three repetitions. The December 2020 examiner found normal forward flexion and abduction muscle strength, no bony abnormalities, no swelling, and the sensory examination was intact to light touch bilaterally. A rotator cuff condition was suspected. Pain to palpation was noted in the right subacromial region and over the right bicep tendon. Right crepitus was noted with passive range of motion. Radial and ulnar pulses were equal bilaterally and slightly more diminished than normal. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a right shoulder disability. The evidence of record shows that the Veteran is right-handed. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to intense and sharp pain and inability to make any above-the-shoulder motions during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss and daily flare-ups would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity. All other potentially applicable Diagnostic Codes have been considered, but there is no evidence showing the Veteran has right shoulder disability symptoms that have not already been considered under the rating criteria for Diagnostic Code 5201. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Schafrath, 1 Vet. App. 589. The Board notes that some of the rating criteria specific to this disability were revised effective February 9, 2021. However, the minor changes to Diagnostic Code 5201 only clarify the specific ranges of motion associated with ratings associated to a shoulder disability and do not provide any criteria that would result in a higher rating than that already assigned to the Veteran. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for a right shoulder disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Residuals of a back injury, including the cervical and lumbosacral spine. The Veteran has contended that his current cervical and lumbosacral spine disabilities are due to his in-service injuries, including a jeep accident, a go-kart accident, and an incident where he was tackled and knocked unconscious while playing softball. Indeed, service treatment records contain an April 1977 complaint of a sore back for two days and a November 1979 medical history report of treatment for back problems in the past year. Additionally, a February 1983 Army Reserve consultation note indicates low back pain due to several mild back injuries during service. A December 2015 VA examiner opined the Veteran’s current cervical and lumbosacral spine disabilities were not due to his in-service injuries, noting the low back symptoms were age-related. A December 2020 VA examiner opined the Veteran’s lumbar strain, degenerative disc disease, lumbar arthritis, cervical arthritis, and residuals of anterior cervical fusion are most likely secondary to advancing age and wear and tear post service. The December 2020 and December 2015 VA examiners also provided the rationales that the record is silent for a back disorder between 1983 and 2012 and is silent for a neck disorder between 1978 and 2014. The December 2020 and December 2015 VA opinions are inadequate because the examiners relied on the absence of documented treatment to provide a negative opinion and did not discuss the Veteran’s contention of continuous pain since service, which the Veteran is competent to report. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician. The relevant evidence in the file, including a complete copy of this remand, must be made available to the examiner. The necessity of an in-person examination is left to the examiner’s discretion in light of the global COVID-19 pandemic. The examiner is asked to address whether the Veteran’s back disabilities (cervical and lumbosacral) are at least as likely as not related to his in-service jeep accident, go-kart accident, and tackle injury. A detailed explanation is required to support the answer to the question. The examiner is also advised that the December 2015 and 2020 VA opinions are inadequate because the examiners relied on the absence of documented treatment to provide a negative opinion and did not discuss the Veteran’s contention of continuous symptoms since service, which the Veteran is competent to report. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.