Citation Nr: 21031830 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-43 819 DATE: May 24, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right shoulder sprain, rotator cuff syndrome, and adhesive capsulitis (a right shoulder disability) is denied. Entitlement to an effective date earlier than September 17, 2012 for the assignment of the 20 percent rating for a right shoulder disability is denied. FINDINGS OF FACT 1. The Veteran was scheduled for a VA examination in January 2020 for his claim for an increased rating for a right shoulder disability. He did not report. 2. The preponderance of the evidence does not show that the Veteran's service-connected right shoulder disability has manifested with right arm limitation of motion to midway between side and shoulder level. 3. The February 2009 rating decision that assigned a noncompensable rating for a right shoulder disability was not timely appealed and is final. 4. On September 17, 2012, the VA received an informal claim from the Veteran to increase the disability rating for his service-connected right shoulder disability. 5. At the time of receipt of the September 17, 2012 claim, there were no pending or otherwise unadjudicated claims for entitlement to an increased rating for a right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5201-5019. 2. The criteria for an effective date prior to September 17, 2012, for the assignment of the 20 percent disability rating for a right shoulder disability are not met. 38 U.S.C. §5110; 38C.F.R. §3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2004 to September 2008. The Board of Veterans' Appeals (Board) remanded this matter for further evidentiary development in November 2018 and December 2019. The case has returned to the Board for appellate review. 1. Entitlement to a rating in excess of 20 percent for a right shoulder disability The Veteran contends that his service-connected right shoulder disability warrants a rating in excess of 20 percent. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In an August 2016 rating decision, the Veteran was granted an increased disability rating from 10 percent to 20 percent for his right shoulder disability, effective September 17, 2012. The Veteran's right shoulder is currently rated under DC 5201-5019. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the assigned rating; the additional code is shown after the hyphen. Under DC 5201, limitation of motion of the major extremity at the shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 20 percent rating in the minor extremity and a 30 percent rating for the major extremity. Where motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity and a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a, DC 5201. The normal ranges of motion of the shoulder are 180 degrees of forward elevation (flexion) and abduction (90 degrees is shoulder level), and 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I. The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may consider these changes without remand to the Agency of Original Jurisdiction (AOJ) for consideration in the first instance. See 38 C.F.R. § 20.904(d)(2). Under the new criteria, DC 5201 provides clarification that midway between side and shoulder level is evidenced by flexion and/or abduction limited to 45 degrees. The Veteran is right-handed, so the analysis pertaining to the right shoulder disability on appeal shall be in reference to the major extremity. The Board has carefully reviewed the evidence of record, to include the VA outpatient treatment records, private treatment records, the Veteran's contentions, and the reports from the VA examination. In consideration of the applicable rating criteria of the shoulder, the Board finds that the objective medical evidence does not support a disability rating in excess of 20 percent for the Veteran's right shoulder disability. Turning to the record, the Veteran was afforded a VA examination in August 2013. The August 2013 examiner reviewed the Veteran's claims file. The Veteran described flare-ups as right shoulder popping and pain on elevation and extension. Initial range of motion (ROM) testing revealed right shoulder flexion to 135 degrees and right shoulder abduction to 120 degrees. ROM measurements after repetitive use testing revealed right shoulder flexion to 135 degrees and abduction to 120 degrees. There was no additional functional loss or limitation in ROM following repetitive-use testing. The Veteran had functional loss and/or impairment, which was described as less movement than normal and pain on movement. There was no ankylosis. The examiner noted a history of mechanical symptoms. The Veteran was positive for shoulder instability. There was no evidence of degenerative or traumatic arthritis. The functional impact was described as an inability to do overhead work with right shoulder. Pursuant to the November 2018 Board remand, the Veteran was scheduled for a VA examination in September 2019. He did not report. Pursuant to the December 2019 Board remand, the Veteran was scheduled for a VA examination in January 2020. He did not report. See January 2020 Invoice. The failure to report was noted in the July 2020 supplemental statement of the case (SSOC). Neither the Veteran nor his representative presented any argument as to why the Veteran failed to report to the examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim and the claimant does not subsequently provide good cause for his failure to do so, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). When the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed or a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655. See also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). The Board has considered the Veteran's lay statements of record, which are probative evidence insofar as they report observable symptomatology; however, to the extent that the Veteran asserts that his right shoulder disability is worse than shown by the objective medical evidence of record, the Board finds that the clinical findings by a medical professional are more probative as to the severity of the disability, particularly when the examiner provided detailed clinical findings as to range of motion, functional loss, and muscle strength. Additionally, the Veteran had claimed that his disability should be rated higher, and the AOJ had increased his rating from 10 to 20 percent. Thus, to that extent, his claim was granted. Here, the Board finds that the medical evidence of record does not demonstrate that a rating of more than 20 percent is warranted. As already stated above, the Veteran is rated 20 percent from September 17, 2012. The 20 percent rating has been assigned for painful motion of the right shoulder. In order to warrant an increased disability rating in excess of 20 percent for his right shoulder disability, the Veteran would need to display limitation of motion of the arm to midway between side and shoulder level. Significantly, however, the preponderance of the evidence is against the Veteran's right shoulder disability manifesting to midway between side and shoulder level as neither flexion nor abduction has been limited to 45 degrees. As such, an increased disability rating is not warranted under DC 5201. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the preponderance of the evidence is against a finding of limitation of the motion of the right arm to midway between side and shoulder level, which is the criteria needed for a 30 percent rating. The examination results show that the Veteran had full (5/5) muscle strength at the August 2013 VA examination. Strength that is full is evidence against weakness. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the preponderance of the evidence is against a finding that the Veteran's pain and functional limitations resulted in limitation of the motion of the right arm to midway between side and shoulder level, which would be required for a finding that the Veteran was entitled to a 30 percent disability rating. The 20 percent rating contemplates, at a minimum, moderate functional impairment. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40 and 4.45 is not approximated in the Veteran's disability picture for this appeal period. The Board has also considered the potential applicability of DCs 5200-5203, which contemplate additional disabilities of the shoulder and arm. See 38 C.F.R. § 4.71a, DCs 5200-03. DC 5200 provides rating criteria for ankylosis of scapulohumeral articulation, where the scapula and humerus move as one piece; DC 5202 provides rating criteria regarding impairment of the humerus; and DC 5203 provides rating criteria regarding impairment of the clavicle or scapula. The objective evidence of record, including as discussed above, does not support any form of ankylosis of scapulohumeral articulation, impairment of the humerus, and the Veteran's impairment of the clavicle is not manifested by nonunion, malunion, or dislocation of the clavicle or scapula; as such, the application of DCs 5200-5203 is not warranted. In sum, the preponderance of the evidence is against a disability rating in excess of 20 percent for the Veteran's right shoulder disability is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to an effective date earlier than September 17, 2012 for the assignment of the 20 percent rating for a right shoulder disability The Veteran contends that he is entitled to an effective date earlier than September 17, 2012 for the assignment of the 20 percent rating for a service-connected right shoulder disability. VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Where a claim is reopened after a final denial, entitlement is the date of the reopened claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3400. By way of history, the Veteran filed an original claim for service connection for a right shoulder disability in September 2008. In a February 2009 rating decision, the AOJ granted service connection and assigned a noncompensable rating, effective September 2, 2008. The Veteran did not appeal this rating and the decision became final. On September 17, 2012, the VA received a claim for an increased rating for the Veteran's right shoulder disability. An August 2013 VA examination revealed findings of painful motion of the shoulder. In an August 2013 rating decision, the AOJ increased the rating to 10 percent, effective September 17, 2012, which is the date the claim for an increased rating was received. The Veteran disagreed with the 10 percent disability rating. In an August 2016 rating decision, the AOJ increased the rating to 20 percent, effective September 17, 2012. The question to the Board then is whether there is a legal basis upon which to assign an earlier effective date for this rating. The Board concludes that there is not. As noted, the Veteran has contended that he is entitled to an earlier effective date for the 20 percent rating. The medical record does not show that the Veteran met the aforementioned criteria for a 20 percent rating until the August 2013 VA examination. Here, the August 2013 VA examiner noted flare-ups of right shoulder pain and popping with elevation and extension. The AOJ found a 20 percent rating was warranted based on painful motion of the shoulder. Thus, it is not until after the September 17, 2012 claim that entitlement to the 20 percent rating is shown. As such, there is no basis to back up this effective date. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.