Citation Nr: 21024793 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-38 617 DATE: April 26, 2021 ORDER A rating higher than 20 percent for right shoulder acromioclavicular separation and impingement, prior to October 24, 2019, is denied. A rating higher than 30 percent for right shoulder acromioclavicular separation and impingement, after October 24, 2019, is denied.   FINDINGS OF FACT Prior to October 24, 2019, the Veteran’s right shoulder disability did not manifest in range of motion limited to midway between side and shoulder level. After October 24, 2019, the Veteran’s right shoulder disability did not manifest in range of motion limited to 25 degrees from the side. CONCLUSIONS OF LAW Prior to October 24, 2019, the criteria for a disability rating higher than 20 percent for the right shoulder disorder were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. After October 24, 2019, the criteria for a disability rating higher than 30 percent for the right shoulder disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to May 1973. The case is on appeal from an April 2013 rating decision. In April 2018, the Veteran testified at a Board hearing. In a July 2018 decision, the Board granted an increase to a 20 percent rating for a right shoulder disability, effective December 3, 2012. The Board also remanded the claim for a disability rating higher than 20 percent for further development. When the case was in remand status, in an April 2020 rating decision, the RO increased the disability rating for right shoulder acromioclavicular separation and impingement to 30 percent, effective October 24, 2019, creating the staged rating currently on appeal. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating higher than 20 percent for right shoulder disability prior to October 24, 2019; and in excess of 30 percent thereafter. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s right shoulder disability has been rated under DC 5201 throughout the appeal period. The rating criteria at 38 C.F.R. § 4.71a, DC 5201, specifically apply to limitation of motion of the shoulder. Under DC 5201, a minimum disability rating of 20 percent is warranted for limitation of motion of the major (dominant) arm at shoulder level 38 C.F.R. § 4.71a, DC 5201. A 30 percent evaluation is warranted for limitation of motion of the major arm midway between the side and shoulder level, and a 40 percent evaluation is assigned for limitation of the major arm motion to 25 degrees from the side. Full range of motion of the shoulder is zero to 180 degrees on abduction and forward elevation (flexion), and zero to 90 degrees on internal and external rotation. Shoulder level is 90 degrees. 38 C.F.R. § 4.71, Plate I. The Board notes that the rating criteria for evaluating the shoulder were amended, effective February 7, 2021. The amendments clarified that limitation of motion applies to flexion and/or abduction, as well as listed the levels of range of motion as 90 degrees, 45 degrees, and 25 degrees, respectively. The Board finds the changes do not affect the outcome of the Veteran’s case. Analysis By history, service connection for the right shoulder disorder was granted in September 1973 with a noncompensable rating. In December 2012, he filed a claim for an increased rating, and in April 2013 the RO increased the rating to 10 precent effective December 3, 2012. In April 2016, the Veteran underwent a VA examination, which noted pain with any overhead activities and throwing objects. The VA examiner documented flexion to 150 degrees, abduction to 130 degrees, external rotation to 70 degrees, and internal rotation to 80 degrees. Pain and flare ups were noted. At the April 2018 Board hearing, the Veteran’s representative argued that under DC 5201 painful motion of the shoulder warrants assignment of a 20 percent evaluation and asserted that the Veteran’s shoulder condition should merit a 20 percent evaluation. In the July 2018 decision, the Board granted a disability rating of 20 percent, effective December 3, 2012, and remanded a disability rating higher than 20 percent. The Board cited the objective evidence of painful motion and tenderness, mainly over the posterior shoulder area, identified in a December 3, 2012 medical report from the Mayo Clinic. The Mayo Clinic medical report notes a limitation in motion to 110 degrees of elevation and 30 degrees of external rotation. In April 2019, the RO requested the Veteran’s assistance in obtaining any private treatment records which may help support his claim for a disability rating higher than 20 percent. The Veteran did not submit any additional private treatment records. The RO did secure Minneapolis VA medical center records, but the most recent shoulder treatment was from 2012. In October 2019, the Veteran underwent a VA examination for his shoulder. The VA examiner found right shoulder flexion to 45 degrees, abduction to 45 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. The VA examiner noted chronic dull pain in the shoulder with a markedly decreased range of motion with lifting or raising the arm above the waist level and intermittent flare ups that cause sharp pain and numbness of the right arm. In April 2020, based on the VA examination, the RO increased the disability rating to 30 percent effective October 24, 2019, the date of the VA examination. Although the October 24, 2019 VA examination report noted the decrease in the Veteran’s range of motion, chronic pain, and intermittent pain warranting the increased 30 percent disability rating, the date of the examination report is not categorically the date of the increase in severity. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). However, in this case, the evidence does support a factually ascertainable increase prior to October 24, 2019. In April 2018 the Veteran provided the December 3, 2012 medical report from the Mayo Clinic, which the Board relied on to grant a 20 percent disability rating, and at the April 2018 Board hearing the Veteran’s representative repeatedly indicated the Veteran’s shoulder statutorily merits a 20 percent rating. There are no treatment records or documented complaints to warrant a 30 percent disability rating prior to the October 24, 2019 VA examination. A higher rating may not be based on speculation. While an increased rating to 30 percent is supported from October 24, 2019, an increase prior to October 24, 2019 is not warranted. The evidence does not show that the Veteran’s right shoulder disability was limited to midway between his side and shoulder level prior to October 24, 2019. Moreover, the evidence does not support an increase to a 40 percent rating, which requires a limitation in the shoulder of flexion or abduction of 25 percent, after October 24, 2019. The October 24, 2019 VA examination documented the Veteran’s right shoulder limitation of flexion as 45 degrees and abduction as 45 degrees. The record does not include evidence of limitation in the shoulder of flexion or abduction of 25 percent. These findings include consideration of painful motion, flare-ups and other factors. In sum, the preponderance of the evidence weighs against an increase more than 20 percent for the right shoulder disorder prior to October 24, 2019 and against an increase more than 30 percent after October 24, 2019. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, higher ratings are not warranted for the right shoulder disorder. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.L. Thomas 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.