Citation Nr: 21029264 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-06 562A DATE: May 13, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to September 18, 2012 and 30 percent thereafter for mild anterior and medial instability of the right shoulder joint is denied. FINDINGS OF FACT 1. The Veteran's right shoulder disability does not manifest with fibrous union or nonunion of the humerus or loss of head. 2. Even considering the Veteran's subjective reports of pain on movement, at no point during the period on appeal has the Veteran's right shoulder disability manifested with limitation of arm motion to 25 degrees from the side. The Veteran further does not have ankylosis or malunion, nonunion, or dislocation of the clavicle or scapula. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent prior to September 18, 2012 and 30 percent thereafter for mild anterior and medial instability of the right shoulder joint have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.31, 4.71, 4.71a, Diagnostic Code 5202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1978 to April 1982. The case is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico that denied a rating in excess of 10 percent for mild anterior and medial instability of the right shoulder joint. A February 2013 rating decision granted a 30 percent rating effective September 18, 2012. The increased rating constitutes a partial grant of benefits, such that the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) In March 2019, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 10 percent prior to September 18, 2012 and 30 percent thereafter for mild anterior and medial instability of the right shoulder joint Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 U.S. Court of Appeals for Veterans Claims (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. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). The Board will 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Diagnostic Codes 5200 through 5203 address impairment of the shoulder and arm. 38 C.F.R. § 4.71a. The Veteran has appealed the rating assigned for his mild anterior and medial instability of the right shoulder joint. He is currently assigned a 10 percent rating prior to September 18, 2012 and a 30 percent rating thereafter under Diagnostic Code 5299-5202. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The Board notes that the Veteran also already has a separate 30 percent rating for residuals of right shoulder derangement under Diagnostic Code 5201 for the entire period on appeal. Of relevance in the instant case, Diagnostic Code 5201 and Diagnostic Code 5202 were changed effective February 2021; however, the changes apply to ratings below what the Veteran is already receiving and thus the changes do not impact the Veteran's appeal. The Veteran's right side is noted to be his dominant side. Diagnostic Code 5202 lists ratings for impairment of humerus. A 30 percent rating is warranted for the major side were there is recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements. A 50 percent rating is warranted for fibrous union of the humerus. A 60 percent rating is warranted for nonunion of the humerus. An 80 percent rating is warranted for loss of head of the humerus. 38 C.F.R. § 4.71a. Here, the Board finds that a preponderance of the evidence is against a rating in excess of 30 percent as of September 18, 2012 under Diagnostic Code 5202. There is no evidence of fibrous union, false flail joint, or flail shoulder, which are necessary for higher ratings. The Board also notes that prior to September 18, 2012 there is no evidence of episodes of dislocation or subluxation as required by a 30 percent rating. The September 28, 2012 VA examination is the earliest evidence that the Veteran met the criteria for a 30 percent rating. VA examinations prior to the appeal period specifically note no history of dislocation or subluxation. The Board has also considered whether a higher or separate rating is warranted under any other diagnostic code related to the shoulder. The Veteran already has a 30 percent rating under Diagnostic Code 5201, which provides for a 30 percent rating for the major side when flexion and/or abduction is limited to 45 degrees. A 40 percent rating is provided when flexion and/or abduction is limited to 25 degrees from the side. 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). The Veteran's right shoulder range of motion was measured at his September 2012 VA examination to be flexion to 45 degrees and abduction to 35 degrees; pain was noted at 5 degrees for each. There was no additional loss of range of motion on repetitive use testing. The examiner indicated that less movement, fatigability, and pain contributed to functional loss after repetitive use. The Veteran reported flare-ups but indicated the flare-ups happen when doing overhead activities. On range of motion testing at his February 2021 VA examination, the Veteran's right shoulder flexion was measured to 80 degrees and his abduction to 75 degrees. The examiner indicated that pain causes functional loss and noted that pain prevents the Veteran from lifting his arm so as to avoid injury. The Veteran had no additional loss on repetitive use testing. The examiner indicated that pain and lack of endurance would limit the Veteran's flexion and abduction to 50 degrees with repeated used over time and during a flare-up. The Board finds that a higher rating under Diagnostic Code 5201 is not warranted as there is no evidence the Veteran's limitation of motion of his right shoulder is limited to 25 degrees from the side. The Veteran has, at worst, manifested limitation of motion to 45 degrees flexion and 35 degrees abduction. The Board has considered the September 201 VA examination report that pain begins at 5 degrees, however, the evidence does not support a finding that the Veteran's pain causes limitation of motion to 5 degrees or even to 25 degrees as required by the higher rating. The Board notes that despite having pain, the Veteran retained flexion to 45 degrees and abduction to 35 degrees on testing. As such, a higher rating is not warranted under 38 C.F.R. § 4.59. The Board has also considered whether the Veteran's reports of flare-ups warrant a higher rating. The Veteran reports that flare-ups are precipitated by working overhead, and manifest with increased pain so that he cannot work overhead. The Board finds that this is sufficient to determine that the Veteran's flare-ups do not warrant a higher rating. Overhead would correspond to 90 degrees to 180 degrees, the Veteran is already in receipt of compensation for an inability to work overhead. As such, the manifestations of his flare-ups are being compensated by his current rating. At no point has the Veteran's right shoulder been noted to be ankylosed or to have such limited range of motion as to be the functional equivalent to ankylosis. As such a separate or higher rating is not warranted under Diagnostic Code 5200. Finally, the Board finds that a rating under Diagnostic Code 5203 is not for application as a preponderance of the evidence is against finding that the Veteran had impairment of the clavicle or scapula. Both the September 2012 and February 2021 VA examiners indicated no such impairment and the evidence does not otherwise reflect that the Veteran has malunion, nonunion, or dislocation of the clavicle or scapula. Based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent prior to September 18, 2012 and 30 percent thereafter for mild anterior and medial instability of the right shoulder joint. The benefit of the doubt doctrine does not apply, and the claim is denied. Amanda Christensen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.