Citation Nr: 21024149 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-27 638 DATE: April 22, 2021 ORDER Prior to September 20, 2019, entitlement to a disability rating 30 percent, but no higher, for glenohumeral joint dislocation, right shoulder is granted. From September 20, 2019, entitlement to a disability rating in excess of 30 percent for glenohumeral joint dislocation, right shoulder is denied. Prior to September 20, 2019, entitlement to a disability rating of 40 percent, but no higher, for degenerative arthritis of the spine (previously rated as degenerative changes at L4-L5 (claimed as lower back pain)) (degenerative arthritis of the spine) is granted. From September 20, 2019, entitlement to a disability rating in excess of 40 percent for degenerative arthritis of the spine is denied. FINDINGS OF FACT 1. Throughout the appeal period, the evidence of record reflects that the Veteran’s glenohumeral joint dislocation right shoulder results in limitation of flexion to 40 degrees, including consideration of additional limitation during flare-ups and due to repetitive use. 2. Throughout the appeal period, the evidence shows that the Veteran’s glenohumeral joint dislocation right shoulder has not manifested with limitation of flexion or abduction to 25 degrees or less, including consideration of additional limitation during flare-ups and due to repetitive use. 3. Throughout the appeal period, the evidence of record reflects that the Veteran’s degenerative arthritis of the spine manifested with limitation of flexion to 30 degrees or less. 4. Throughout the appeal period, the evidence of record reflects that the Veteran’s degenerative arthritis did not manifest with limitations that more nearly approximated unfavorable ankylosis of the lumbar spine or the entire spine; or incapacitating episodes having a total duration of at least six weeks within a 12-month period. CONCLUSIONS OF LAW 1. Prior to September 20, 2019, the criteria for a disability rating of 30 percent, but no higher, for the Veteran’s glenohumeral joint dislocation, right shoulder have been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5201. 2. From September 20, 2019, the criteria for a disability rating in excess of 30 percent for the Veteran’s glenohumeral joint dislocation, right have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5201. 3. Prior to September 20, 2019, the criteria for a disability rating of 40 percent, but no higher, for degenerative arthritis of the spine have been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5242. 4. From September 20, 2019, the criteria for a disability rating in excess of 40 percent for degenerative arthritis of the spine have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to March 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in November 2018 for further development. Review of the completed development related to the Board’s remand reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). At the time this appeal was initiated, the Veteran had received a 10 percent rating for his right shoulder disability and a 10 percent rating for his degenerative arthritis of the spine. A May 2016 rating decision increased both the right shoulder and spine disability to 20 percent disabling, effective February 13, 2012. Subsequently, in a September 2020 rating decision, the RO granted an increased disability rating for glenohumeral joint dislocation, right shoulder to 30 percent disabling effective September 20, 2019. The RO also granted an increased disability rating for degenerative arthritis of the spine to 40 percent disabling effective September 20, 2019. As these grants, however, did not represent a total grant of benefits sought for the entire period on appeal, the Veteran’s claims for a higher rating for his glenohumeral joint dislocation, right shoulder and degenerative arthritis of the spine remain pending before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that a Supplemental Statement of the Case (SSOC) was issued in August 2020 that, in pertinent part, denied entitlement to a rating in excess of 40 percent from September 20, 2019 for his glenohumeral joint dislocation, right shoulder. After the September 2020 rating decision was issued granting entitlement to a 30 percent rating for glenohumeral joint dislocation, right shoulder, effective September 20, 2019, an SSOC was not issued addressing denial of entitlement to a rating in excess of 30 percent for this condition from September 20, 2019. The Board, however, does not find that remand for issuance of an SSOC is necessary. The Veteran’s claim was adjudicated by the Agency of Original Jurisdiction (AOJ) in the September 2020 rating decision, which informed the Veteran the reason for assigning a 30 percent rating and that a higher 40 percent evaluation was not warranted for limitation of motion of the arm unless the evidence shows limited motion of the arm to 25 degrees from the side. See September 2020 rating decision. The Veteran’s claim has been adjudicated by the AOJ in the first instance, and he has been informed of the reasons why a higher rating has not been assigned. The Board finds that the Veteran’s interest are better served by prompt resolution of his claim rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). As such, the Board finds that this matter is now properly before the Board. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Entitlement to a disability rating of 30 percent for glenohumeral joint for the period on appeal. The Veteran contends that his right shoulder disability is worse than contemplated by the assigned disability ratings. The Veteran is currently rated at 20 percent disabling for his right shoulder under Diagnostic Code 5201 prior to September 20, 2019, and 30 percent disabling after September 20, 2019. Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the medical evidence shows that the Veteran is right-hand dominant, his right shoulder is the major shoulder for rating purposes. Under Diagnostic Code 5201, the major shoulder is rated as follows: limitation of motion to shoulder level (i.e. 90 degrees) warrants a 20 percent rating; motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) warrants a 30 percent rating; and motion limited to 25 degrees or less from the side is rated at 40 percent. 38 C.F.R. § 4.71a. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds the Veteran’s right shoulder disability limitations are more closely approximated by the criteria for a 30 percent disability rating under Diagnostic Code 5201 for the period on appeal. The Board finds that the Veteran’s glenohumeral joint dislocation, right shoulder demonstrates range of motion of flexion from 0 to 40 degrees, which more nearly approximates limitation of flexion of the Veteran’s major shoulder to midway between the side and shoulder level (approximately 45 degrees). The Board finds that the Veteran’s range of motion of his right shoulder has been limited to at least 40 degrees throughout the period on appeal. The Board finds probative the findings of the September 2019 VA examiner that considered the Veteran’s reports of flare-ups and additional limitation with repeated use over time. Significantly, the Board notes that the Veteran was not properly informed of the examination scheduled in October 2013 and the examination performed in May 2016 did not provide an estimation of additional limitation of range of motion during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the evidence of record supports that the Veteran’s flexion of the right shoulder has been limited to at least 40 degrees during flare-ups throughout the period on appeal. See Swain v. McDonald,27 Vet. App. 219, 224 (2015) (an “effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the Veteran’s disability] first manifested”). 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5201. The Board, however, finds that a rating in excess of 30 percent is not warranted for the Veteran’s glenohumeral joint dislocation, right shoulder throughout the appeal period. Under Diagnostic Code 5201, a rating in excess of 40 percent is not warranted unless the evidence demonstrates motion limited to 25 degrees or less. None of the competent evidence of record demonstrates limitation of flexion or abduction of the right shoulder that more nearly approximates limitation to 25 degrees or less. The Board finds probative the reports of the 2019 VA examination that reported limitation of the right shoulder to 40 degrees, including consideration of additional limitation during flare-ups and with repeated use over time. The Boards notes that none of the medical evidence of record reports that the Veteran’s right arm is limited in either flexion or abduction to 25 degrees or less. As 40 degrees is closer to 45 degrees, than 25 degrees, the Board finds that the Veteran’s condition more nearly approximates limitation to midway between side and shoulder level, rather than to 25 degrees or less. As such, a higher 40 percent rating is not warranted pursuant to Diagnostic Code 5201. 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5201. The Board also finds that a rating in excess of 40 percent is not warranted. In order to warrant a disability rating higher than 40 percent, the Veteran must exhibit ankylosis under Diagnostic Code 5200. Here, there is no evidence within the medical record, including the September 2019 VA examination, that the Veteran exhibited ankylosis of the right shoulder. Rather both examinations have denied ankylosis and the Veteran has not reported that his arm is fused in place. Therefore, a higher rating under Diagnostic Code 5200 is not warranted. Effective February 8, 2021, the regulations pertaining to musculoskeletal disabilities changed. Under the new regulations, the Veteran would not be entitled to a higher rating than that which is already assigned for the period on appeal. For the foregoing reasons, the Board finds that prior to September 20, 2019, a 30 percent disability rating, but no higher, is warranted for the Veteran’s glenohumeral joint dislocation, right shoulder; and a disability rating in excess of 30 percent, is not warranted, thereafter. As the preponderance of the evidence reflects the symptoms of the Veteran’s right shoulder condition do not more nearly approximate the criteria for disability ratings higher than 30 percent, the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Entitlement to a higher disability rating for degenerative arthritis of the spine The Veteran contends he is entitled to a higher evaluation for his degenerative arthritis of the spine. The Veteran’s rating is assigned under Diagnostic Code 5242, which pertains to degenerative arthritis of the spine and loss of motion. 38 C.F.R. § 4.71a. The Schedule for Rating Disabilities mandates that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. This General Rating Formula assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under the General Rating Formula for Diseases and Injuries of the Spine, pursuant to Diagnostic Code 5242, a 10 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or with a combined range of motion not greater than 120 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. A 30 percent disability rating is assigned for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Note (2) to the General Rating Formula explains that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds the Veteran’s degenerative arthritis of the spine warrants a uniform 40 percent rating, but no higher, throughout the period on appeal. The Board finds that the Veteran’s degenerative arthritis of the spine demonstrates limitation of flexion to 25 degrees, which meets the criteria for a 40 percent rating. The Board finds that the Veteran’s range of motion of his lumbar spine has been limited to at least 30 degrees throughout the period on appeal. The Board finds probative the findings of the September 2019 VA examiner that considered the Veteran’s reports of additional limitation during flare-ups. The Board notes that the Veteran was not properly informed of the examination scheduled in October 2013 and the examination performed in May 2016 did not provide an opinion of additional limitation of range of motion of flexion or abduction during flare-ups. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran’s flexion of the lumbar spine has been limited to 30 degrees or less during flare-ups throughout the period on appeal. See Swain. See 38 C.F.R. § 4.3; 4.71a, DC 5237. The Board, however, finds that a rating in excess of 40 percent is not warranted for the Veteran’s lumbar spine disability throughout the appeal period. Under the General Formula, a rating in excess of 40 percent is not warranted based upon limitation of motion of the lumbar spine. To the extent that the Veteran reports that he is unable to bend her spine without pain, the Board notes that a higher 50 percent or 100 percent rating are only warranted for unfavorable ankylosis of the thoracolumbar spine or the entire spine. As the Veteran has not reported, and as the medical evidence of record does not otherwise indicate, that the Veteran's spine is permanently fixed in a non-favorable position, the Board finds that his condition does not more nearly approximate unfavorable ankylosis of the lumbar spine during this period. See 38 C.F.R. § 4.3; 4.71a, DC 5237. The Board also finds that the evidence does not support that the Veteran required bed rest for at least 6 weeks during this period. Neither the 2016 nor 2019 examiner reported that the Veteran required prescribed bed rest. The Veteran’s treatment records of record do not establish that the Veteran was prescribed bed rest by a physician of at least six weeks during a 12-month period during the period on appeal. Accordingly, the Board finds that a rating in excess of 40 percent is not warranted based upon incapacitating episodes. See 38 C.F.R. § 4.3; 4.71a, DC 5237. Effective February 8, 2021, the regulations pertaining to musculoskeletal disabilities changed. Under the new regulations, the Veteran would not be entitled to a more favorable rating than that which is already assigned for the period on appeal. For the foregoing reasons, the Board finds that prior to September 20, 2019, a 40 percent disability rating, but no higher, is warranted for the Veteran’s degenerative arthritis of the spine; and a disability rating in excess of 40 percent, is not warranted, thereafter. As the preponderance of the evidence reflects the symptoms of the Veteran’s degenerative arthritis of the spine do not more nearly approximate the criteria for disability ratings higher than 40 percent, the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.