Citation Nr: 21025804 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-26 750 DATE: April 29, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for osteoarthritis of the right shoulder, status post subacrimonial decompression, debridement of rotator cuff and degenerative labral tear (non-dominant), is denied. Entitlement to a 30 percent evaluation for sinusitis from July 14, 2015 to April 29, 2019 is granted. Entitlement to an evaluation in excess of 50 percent for sinusitis from April 30, 2019 is denied. Entitlement to an extraschedular rating for sinusitis is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s osteoarthritis of the right shoulder, status post subacrimonial decompression, debridement of rotator cuff and degenerative labral tear (non-dominant), manifests flexion limited to no less than 80 degrees and abduction limited to no less than 80 degrees. 2. Resolving all reasonable doubt in favor of the Veteran, from July 14, 2015 to April 29, 2019, the Veteran’s sinusitis more closely approximates more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge and crusting. 3. From April 30, 2019, the Veteran is in receipt of the maximum allowable schedular evaluation for sinusitis. 4. The Veteran’s sinusitis does not present an exceptional or unusual disability picture as to render impractical the application of regular schedular criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent for osteoarthritis of the right shoulder, status post subacrimonial decompression, debridement of rotator cuff and degenerative labral tear (non-dominant), have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201. 2. The criteria for entitlement to a 30 percent evaluation for sinusitis from July 14, 2015 to April 29, 2019 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Code 6510. 3. The criteria for entitlement to an evaluation in excess of 50 percent for sinusitis from April 30, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Code 6510. 4. The criteria for entitlement to an extraschedular rating for sinusitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Coast Guard from September 2001 to October 2001, from June 2002 to October 2002, and from July 2004 to January 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the case is now before the RO in Atlanta, Georgia. In the December 2015 rating decision, the RO granted a 10 percent evaluation for sinusitis, effective July 14, 2015; denied a higher than 10 percent evaluation for right shoulder osteoarthritis (non-dominant); denied service connection for left shoulder SLAP lesion with AC joint arthrosis (dominant); and denied service connection for depressive disorder. The Veteran appealed for higher evaluations and service connection. The Veteran testified before a Veterans Law Judge (VLJ) at an April 2019 Travel Board hearing. A transcript of this hearing is of record. In February 2021, the Veteran was notified that the VLJ who held his April 2019 hearing was no longer employed by the Board. The Veteran did not respond to the offer for another hearing. 38 C.F.R. § 20.604. In August 2019, the Board remanded the issues on appeal for additional development. As the actions specified in the remand have been substantially completed, the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). During the pendency of the appeal, the RO issued an August 2020 rating decision granting a 50 percent evaluation for sinusitis, effective April 30, 2019; and a 20 percent evaluation for right shoulder osteoarthritis, effective July 14, 2015. The Veteran continued to appeal for higher evaluations for sinusitis and right shoulder osteoarthritis. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). In a November 2019 rating decision, the Veteran was granted service connection for left shoulder superior labral tear from anterior to posterior (dominant). Additionally, in the August 2020 rating decision, the Veteran was granted service connection for major depressive disorder with alcohol abuse disorder. These were issues that had been on appeal. As these issues have been resolved by a full grant of benefits, and the Veteran has not submitted any documents indicating that he is not satisfied with the decision, the Board finds that the issues are no longer part of the current appeal. See 38 C.F.R. § 19.26(d). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. 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 actually 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. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 09-1998. 1. Entitlement to an evaluation in excess of 20 percent for osteoarthritis of the right shoulder, status post subacrimonial decompression, debridement of rotator cuff and degenerative labral tear (non-dominant) The Veteran asserts that his right shoulder osteoarthritis is worse than his current evaluation reflects. At the April 2019 Board hearing, the Veteran testified that his right shoulder had become more severe since his last VA examination in 2015. He described having flare-ups characterized by fatigue and constant pain. He also reported having symptoms of constant popping and locking up. His pain was so constant that he took 2400 milligrams of ibuprofen daily. He also reported treating his right shoulder with anti-inflammatories. During the relevant appeal period, the Veteran’s right shoulder osteoarthritis has been currently evaluated as 20 percent disabling, effective July 14, 2015, under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5201. 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 Board notes that VA has amended the rating criteria for musculoskeletal system disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to February 7, 2021, Diagnostic Code 5010 provides that arthritis due to trauma, substantiated by x-ray findings, is to be rated under Diagnostic Code 5003 as degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Note 1 provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Effective February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis is to be 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 38 C.F.R. § 4.25. With respect to disabilities of the shoulder, 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 set forth the relevant provisions. However, in this case, the evidence does not demonstrate ankylosis of the shoulder (Diagnostic 5200), other impairment of the humerus (Diagnostic Code 5202) or impairment of clavicle or scapula (Diagnostic Code 5203), thus, the diagnostic codes pertaining to such impairments are not applicable. Handedness for the purpose of a dominant extremity 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. In this case, the evidence (e.g., December 2019 VA examination) shows that the Veteran is left-handed. Consequently, for rating purposes, the right shoulder is the minor upper extremity. Prior to February 7, 2021, Diagnostic Code 5201 for limitation of motion of the arm, pertinent to the minor upper extremity, a minimum 20 percent rating is assigned for limitation of motion of the arm at shoulder level. A 20 percent rating is assigned for limitation of motion of the arm midway between side and shoulder level. A 30 percent rating is assigned for limitation of motion of the arm to 25 degrees from side. Effective February 7, 2021, Diagnostic Code 5201 for limitation of motion of the arm, pertinent to the minor upper extremity, a minimum 20 percent rating is assigned for limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees). A 20 percent rating is assigned for limitation of motion of the arm midway between side and shoulder level (flexion and/abduction limited to 45 degrees). A 30 percent rating is assigned for limitation of motion of the arm flexion and/or abduction limited to 25 degrees from side. Normal range of motion of the shoulder is from 0 to 180 degrees of flexion, from 0 to 180 degrees of abduction, and from 0 to 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I. Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran’s right shoulder osteoarthritis does not warrant a higher 30 percent evaluation under either the pre- or post -February 7, 2021 Diagnostic Code 5201. In other words, the Veteran’s right shoulder osteoarthritis does not more closely approximate limitation of motion of the arm to 25 degrees. At his November 2015 VA examination, the Veteran reported having flare-ups every morning that he described as constant pain and pressure in his right shoulder. He also experienced functional loss exhibited by limited range of motion, loss of strength, muscle fatigue, and constant pain in the right shoulder. Range of motion testing revealed right shoulder flexion limited to 120 degrees with pain and abduction limited to 120 degrees with pain. Following repetitive use testing, no additional loss of function or range of motion was found. At his December 2019 VA examination, the Veteran reported having daily flare-ups, which were described as moderate to severe and lasting a few hours to days. He had difficulty with overhead use and reaching out to the side or behind his back. Range of motion testing revealed right shoulder flexion limited to 90 degrees without pain and abduction limited to 90 degrees with pain. The VA examiner found that additional range of motion loss was found with repeated use over time. Right shoulder flexion was limited to 85 degrees and abduction was limited to 85 degrees. Further, range of motion loss was found with flare-ups. Right shoulder flexion was limited to 80 degrees and abduction was limited to 80 degrees. These findings were based on the December 2019 VA examiner’s determination that the Veteran’s right shoulder pain and weakness significantly limited his functional ability with repeated use over time and flare-ups. Given that the clinical findings show that the Veteran’s reports of flare-ups and functional loss have already been considered, the Board finds that the Veteran’s right shoulder manifests flexion limited to no less than 80 degrees and abduction limited to no less 80 degrees. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board is sympathetic to the Veteran’s right shoulder symptomatology; however, there is no basis upon which to award a higher 30 percent evaluation under Diagnostic Code 5201. Therefore, the Board concludes that the Veteran’s right shoulder osteoarthritis is no more than 20 percent disabling. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s higher than 20 percent evaluation claim for right shoulder osteoarthritis. Therefore, the benefit-of-the-doubt rule does not apply, and the higher evaluation claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an evaluation in excess of 10 percent evaluation for sinusitis from July 14, 2015 to April 29, 2019 3. Entitlement to an evaluation in excess of 50 percent for sinusitis from April 30, 2019 The Veteran asserts that his sinusitis is worse than his current evaluation reflects. At the April 2019 Board hearing, the Veteran testified that he experienced sinus pressure and pain, nasal discharge, and migraine headaches. His headaches occasionally lasted several hours to a full day. He said that the headaches occurred almost once a month. Occasionally, he also had sore throats. He worked as a police officer at the Sheriff’s office, but he reported having to take sick time off “on quite a few occasions.” Due to his sinusitis, the Veteran said that his doctors wanted him to have surgery, because he had begun to develop a deviated septum. He used a nasal inhaler daily and sometimes twice a day to try to open up his sinus passages and keep the inflammation down. During the relevant appeal period, the Veteran’s sinusitis has been currently evaluated as 10 percent disabling, effective July 14, 2015, and 50 percent disabling, effective April 30, 2019, under 38 C.F.R. § 4.97, Diagnostic Code 6510. Diagnostic Code 6510 is evaluated under the General Rating Formula for Sinusitis. A noncompensable rating is assigned when sinusitis is detected by x-ray only. A 10 percent rating requires one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating requires osteomyelitis following radical surgery; or near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A note to the General Rating Formula for Sinusitis states that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that from July 14, 2015 to April 29, 2019, a higher 30 percent evaluation for sinusitis is warranted under the General Rating Formula for Sinusitis. At the Veteran’s November 2015 VA examination, he reported having progressively worse symptoms with flare-ups occurring almost monthly or more at times. He used a nasal inhaler to assist with decreasing the swelling in the sinuses. An objective evaluation revealed that the Veteran had chronic sinusitis with headaches, pain and tenderness of affected sinus, and purulent discharge or crusting. The headaches, pain and discharge occurred about once a month. The Veteran had six non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. Viewing the evidence in the light most favorable to the Veteran, the Board finds that the Veteran’s subjective reports of flare-ups occurring monthly or more coupled with the clinical findings at the November 2015 VA examination that he had six non-incapacitating episodes of sinusitis provide the most probative evidence. Accordingly, the Board finds that from July 14, 2015 to April 29, 2019, the Veteran’s sinusitis more closely approximates more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge and crusting. Thus, the Veteran’s sinusitis warrants a higher 30 percent evaluation. However, the evidence does not support that during this appeal period, the Veteran’s sinusitis more closely approximates near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries; or osteomyelitis following radical surgery. Therefore, from July 14, 2015 to April 29, 2019, the Veteran’s sinusitis is no more than 30 percent disabling. For the appeal period from April 30, 2019, the Board finds that the Veteran has already been assigned the maximum schedular rating for sinusitis under the General Rating Formula for Sinusitis. Thus, the Board finds that there is no basis upon which to award a higher than 50 percent evaluation for sinusitis under the General Rating Formula for Sinusitis. Accordingly, from April 30, 2019, the Veteran’s sinusitis is no more than 50 percent disabling. In summary, resolving all reasonable doubt in favor of the Veteran, from July 14, 2015 to April 29, 2019, a 30 percent evaluation for sinusitis is granted. However, from April 30, 2019, the Board finds that there is no legal basis upon which to award a higher than 50 percent evaluation for sinusitis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 4. Entitlement to an extraschedular rating for sinusitis The Veteran asserts that he warrants an extraschedular rating for his sinusitis. See October 2020 Appellant’s Post-Remand Brief. The Board has considered whether the Veteran's sinusitis presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The Veteran’s sinusitis is manifested by symptoms of nasal pain and pressure, headaches, purulent discharge, swelling, and tenderness, which caused him to take sick leave from his job as a police officer with the Sheriff’s office on a few occasions. These symptoms and their resulting effects are fully contemplated by the rating schedule, which provides disability ratings based on the frequency of incapacitating or non-incapacitating episodes of sinusitis and the extent to which antibiotics or surgery was required to treat the condition. The Board concludes that there is nothing exceptional or unusual about the Veteran's disability; the rating criteria adequately describe his disability level and symptomatology. Thun v. Peake, 22 Vet. App. 111, 115 (2008). For these reasons, the Board concludes that an extraschedular rating for sinusitis is not warranted. 38 C.F.R. § 3.321(b)(1). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.