Citation Nr: 21026426 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-50 061A DATE: May 3, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right shoulder disability, manifested by limitation of motion, is denied. Entitlement to a rating in excess of 20 percent for a left shoulder disability, manifested by limitation of motion, is denied. FINDINGS OF FACT 1. The Veteran's right shoulder disability is manifested by painful motion. 2. The Veteran's left shoulder disability is manifested by painful motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right shoulder limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for a rating in excess of 20 percent for left shoulder limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from August 1981 to January 1989. This matter appears before the Board of Veterans' Appeals (Board) on appeal of a December 2017 rating decision of the Regional Office (RO). The Veteran's claims were previously before the Board in July 2019 when it denied the Veteran's claims to a rating in excess of 20 percent for his bilateral shoulders. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), and the Court remanded the Veteran's claims back to the Board. In an October 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain a new VA examination to determine the nature and severity of the Veteran's bilateral shoulder disabilities, including during flare-ups. VA requested the examination in November 2020. In December 2020, the examination was associated with the record. The Board finds substantial compliance with its October 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Of note, the Veteran was initially granted service connection for acromioclavicular separation of the right and left shoudlers effective April 12, 2011 under Diagnostic Code 5201. The Veteran filed a claim for an increased rating in October 2017. After a lengthy procedural history, outlined above, the Court directed VA to review separate ratings for the Veteran's bilateral shoulder disablities. As a result, in January 2021, VA granted service connection for separate 20 percent ratings for separation of the left and right shoudlers. The Veteran has not expressed any disagreement with these specific ratings. Accordingly, the Board will only address the issues on appeal, which are entitlement to ratings in excess of 20 percent for limitation of motion of each shoulder. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran 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). Increased Rating 1. Entitlement to a rating in excess of 20 percent for right shoulder limitation of motion 2. Entitlement to a rating in excess of 20 percent for left shoulder limitation of motion The Veteran's right and left shoulder disabilities are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5201. Specifically, the Veteran's right and left shoulders are rated 20 percent under DC 5201. Effective February 7, 2021, the Musculoskeletal and Muscle Injuries body system in VA's Schedule for Rating Disabilities (VASRD) was revised to ensure the schedule uses current terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities. Importantly, DCs 5003 and 5201 were revised; however, DC 5203 remains unchanged. Under DC 5003, a Veteran's disability is rated based on degenerative arthritis. Effective February 7, 2021, DC 5003 was revised to clarify that it rated degenerative arthritis other than post-traumatic. A 10 percent evaluation is assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Under DC 5201, a Veteran's disability is rated based on limitation of motion. Prior to February 7, 2021, a 20 percent rating is assigned for limitation of motion of the arm at shoulder level for both the major and minor extremity. A 20 percent rating is also assigned for limitation of motion of the arm midway between side and shoulder level of the minor extremity. A 30 percent rating is assigned for limitation of the arm midway between side and shoulder level of the major extremity and to 25 degrees from the side for the minor extremity. A 40 percent rating is assigned for limitation of the arm to 25 degrees from the side for the major extremity. Effective February 7, 2021, a 20 percent rating is assigned for limitation of motion of the arm at shoulder level (flexion and/ or abduction limited to 90 degrees) for both the major and minor extremity. A 20 percent rating is also assigned to limitation of motion of the arm midway between side and shoulder level (flexion and/ or abduction limited to 45 degrees) for the minor extremity. A 30 percent rating is assigned for limitation of motion of the arm midway between side and shoulder level (flexion and/ or abduction limited to 45 degrees) of the major extremity and limitation of flexion and/ or abduction limited to 25 degrees of the minor extremity. A 40 percent rating is assigned for limitation of flexion and/ or abduction limited to 25 degrees from side of the major extremity. The Board notes that normal range of motion is 180 degrees on flexion and 180 degrees on abduction. See 38 C.F.R. § 4.71, Plate I. 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. The Veteran underwent VA examination in November 2017. The examiner diagnosed the Veteran with acromioclavicular separation and arthritis of the bilateral shoulders. The Veteran reported bilateral shoulder pain, the inability to lift his left arm overhead, and muscle spasms in both arms. The Veteran reported flare-ups and pain after increased activity. Upon physical examination, the Veteran's right shoulder range of motion was 0 to 165 degrees on flexion; 5 to 170 degrees on abduction; 0 to 80 degrees on external rotation; and 5 to 80 degrees on internal rotation. The Veteran's left shoulder range of motion was 15 to 170 degrees on flexion; 10 to 170 degrees on abduction; 10 to 85 degrees on external rotation; and 10 to 70 degrees on internal rotation. The examiner noted evidence of bilateral pain on movement and crepitus. There was no reduction in range of motion following repetitive use. The examiner indicated that the Veteran's range of motion could not be determined after repeated use over time or during a flare-up without resorting to mere speculation. There was no evidence of ankylosis, rotator cuff conditions, muscle atrophy, or acromioclavicular conditions. As previously determined by the Board and Court, this examination was inadequate because it is not compliant with Sharp. Therefore, it has low probative value. Of note, the examination does show objective pain on movement. However, it does not address functional loss during flare-ups or after repeated use over time. Additionally, the examiner diagnosed the Veteran with acromioclavicular separation, but found no acromioclavicular conditions. The Veteran underwent VA examination again in November 2020. The Veteran reported intermittent bilateral shoulder pain and clicking of bilateral shoulders with use or range of motion. The Veteran further reported that he has flare-ups with sharp pain that radiates to his chest, back, neck, and head. He reported having trouble raising his shoulders, reaching, picking up heavy things, doing usual hobbies, playing with his grandchildren, or completing chores. Upon physical examination, the Veteran's right shoulder range of motion was 0 to 160 degrees on flexion; 0 to 165 degrees on abduction; 0 to 90 degrees on external rotation; and 0 to 55 degrees on internal rotation. The Veteran's left shoulder range of motion was 0 to 165 degrees on flexion and abduction; 0 to 80 degrees on external rotation; and 0 to 65 degrees on internal rotation. The examiner noted bilateral pain with weight bearing and crepitus. There was no reduction of range of motion after repetitive use. The examiner estimated that the Veteran's right shoulder range of motion after repeated use over time and during a flare-up is 0 to 155 degrees on flexion; 0 to 160 degrees on abduction; 0 to 70 degrees on external rotation; and 0 to 50 degrees on internal rotation. The examiner estimated that the Veteran's left shoulder range of motion after repeated use over time and during a flare-up is 0 to 160 degrees on flexion and abduction; 0 to 75 degrees on external rotation; and 0 to 60 degrees on internal rotation. There was no evidence of ankylosis, muscle atrophy, or rotator cuff conditions. The examiner noted dislocation of the acromioclavicular joint and tenderness on palpation of the acromioclavicular joint. As noted above, the Veteran is currently rated 20 percent for right and left shoulder painful motion. Under DC 5201, a 30 percent rating is warranted for limitation of motion of the arm midway between side and shoulder level of the major extremity and limitation to 25 degrees from the side of the minor extremity. The Veteran's November 2020 VA examination does not suggest that an increase to a 30 percent rating under DC 5201 is warranted. The Veteran's right shoulder range of motion, at worst, was 0 to 155 degrees on flexion; 0 to 160 degrees on abduction; 0 to 70 degrees on external rotation; and 0 to 50 degrees on internal rotation. This range of motion does not warrant a 30 percent rating, both before and after February 7, 2021. The Veteran's range of motion for his right shoulder is not limited to midway between his side and shoulder level or 45 degrees. The Veteran's left shoulder range of motion, at worst, was 0 to 160 degrees on flexion and abduction; 0 to 75 degrees on external rotation; and 0 to 60 degrees on internal rotation. This range of motion does not warrant a 30 percent rating, both before and after February 7, 2021. The Veteran's range of motion for his left shoulder is not limited to midway between his side and shoulder, or 45 degrees. Accordingly, the Board finds that a rating in excess of 20 percent for limited motion of the right and left shoulders is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. N. Fournier, 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.