Citation Nr: 21042033 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-63 232 DATE: July 11, 2021 ORDER Entitlement to an initial rating in excess of 40 percent for the service-connected acromioclavicular joint osteoarthritis of the right shoulder with right shoulder impingement syndrome, status post repair, and rotator cuff tendonitis (right shoulder disability) is denied. FINDINGS OF FACT 1. The current evaluation of the Veteran's service-connected right shoulder disability (40 percent) is the maximum rating allowed under Diagnostic Code 5201 for limitation of motion of the arm or shoulder. 2. The medical evidence does not establish that the Veteran has any impairment of his humerus or ankylosis of his right shoulder joint. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 40 percent for the service-connected acromioclavicular joint osteoarthritis of the right shoulder with right shoulder impingement syndrome, status post repair, and rotator cuff tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.3, 4.4, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5003-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1994 to November 1999. This appeal arises from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded this increased rating issue for further evidentiary development. In August 2020, the Agency of Original Jurisdiction (AOJ) awarded an initial 40 percent rating for the Veteran's right shoulder disability. Because the maximum benefit was not granted now or during the pendency of the appeal period, the issue of entitlement to a higher evaluation remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Initial rating for the service-connected right shoulder disability The Veteran seeks a rating greater than the current evaluation of 40 percent for his service-connected right shoulder disability. This condition is evaluated under Diagnostic Codes 5003-5201. Diagnostic Code 5003 evaluates impairment resulting from degenerative arthritis, and Diagnostic Code 5201 evaluates limitation of motion of the arm or shoulder. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The only changes made regarding Diagnostic Code 5003 is that it evaluates degenerative arthritis other than post-traumatic arthritis. It still instructs that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Regarding Diagnostic Code 5201, the changes made pertain to specifying the measurements for the limitation of motion. Under the prior criteria for Diagnostic Code 5201, a 20 percent rating is assigned for limitation of motion of the arm at shoulder level for both major and minor joints; or midway between the side and shoulder level for the minor joint. A 30 percent rating is assigned for limitation of motion of the arm midway between the side and shoulder level for the major joint; or to 25 degrees from the side for the minor joint. A 40 percent rating, the highest schedular rating allowed, is assigned for limitation of motion of the arm to 25 degrees from the side for the major joint. Under the revised criteria for Diagnostic Code 5201, 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 major and minor joints; or midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) for the minor joint. A 30 percent rating is assigned for limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) for the major joint; or flexion and/or abduction limited to 25 degrees from the side minor joint. A 40 percent rating, the highest schedular rating allowed, is assigned for limitation of motion of the arm with flexion and/or abduction limited to 25 degrees from the side for the major joint. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran is right-handed. Therefore, he would be evaluated based on the ratings allowed for the major joint. Turning now to the evidence of the record, on the July 2015 VA examination, the Veteran reported that his condition began with a torn rotator cuff. He reported that, when he fell asleep, his shoulder and arm would feel numb upon awakening. He also expressed that he had limited use of his arm and his fingers would get numb. He reported experiencing flare-ups, explaining that it was awkward when his shoulder felt numb and his fingers would tingle. Regarding functional impairment the Veteran described his shoulder as not being "100 percent" and being afraid to use his arm fully because he was afraid of further injury. Flexion was 95 degrees; abduction was 100 degrees. Pain noted on examination caused functional loss. There was evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joint and associated soft tissue. The Veteran was able to perform repetitive use testing without additional limitations. He was not being examined immediately after repetitive use over time. The examination was neither consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examination was conducted during a flare-up. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare-ups. Regarding estimated range of motion, the examiner stated that the degree of range of motion loss during pain on use or flare-ups would be speculation at best, approximately 5-10 degrees each direction. Less movement than normal, weakened movement, deformity, and atrophy of disuse contributed to the disability. Muscle strength was reduced. The Veteran did have muscle atrophy. There was no ankylosis. He did have a rotator cuff condition. Instability, dislocation, or labral pathology was suspected. He also had history of mechanical symptoms, such as catching and clicking. Crank Apprehension and Relocation tests results were negative. He did not have a clavicle or scapular joint condition or any humerus impairments. Regarding functional impact, the Veteran experienced difficulties with duties involving heavy lifting or stocking items. In November 2015, the Veteran expressed that he experienced increased stiffness in his shoulder. He continued that he was forced to compensate for that stiffness by using other muscles in his arm, which caused more stiffness and knots in his elbow. See November 2015 NOD (VA Form 21-0958). On a July 2019 Disability Benefits Questionnaire (DBQ), the Veteran reported experiencing flare-ups, described as limited range of motion and experiencing extreme pain. He was not able to complete overhead tasks during flare-ups. Regarding functional impairment, he reported that his symptoms interfered with physical activities and completing activities of daily living. Flexion and abduction were 65 degrees. He was able to perform repetitive use testing without additional limitations. There was pain on weight-bearing and non-weightbearing. Less movement, weakened movement, excess fatigability, and pain on movement contributed to his disability. Estimated flexion and abduction after repetitive use over time were 10 degrees. Muscle strength was reduced. He did not have muscle atrophy or ankylosis. Shoulder instability, dislocation, or labral were suspected. He had a history of recurrent dislocation, with frequent episodes of guarding of all arm movement. Crank Apprehension and Relocation test yielded positive results. An acromioclavicular (AC) joint condition was suspected, which was noted to be osteoarthritis. Cross-body abduction test was positive. He did not have any humerus impairments and reported difficulty completing occupational tasks due to his limited movement and severe pain during flare-ups. On the July 2020 VA Examination, the Veteran reported flare-ups and explained that they are precipitated by the use of his shoulder. Regarding functional impairment, he described that he could not reach over his head, lift, or carry heavy items. He also had difficulty driving and performing housework. Flexion was 15 degrees, and abduction was 20 degrees. Pain noted on examination caused functional loss. There was evidence of pain in weight-bearing, non-weightbearing, and passive range of motion. He was not able to perform repetitive use testing due to severe pain. He was not being examined immediately after repetitive use over time or during a flare-up. The examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during a flare-up. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repetitive use over time and during a flare-up. Estimated flexion was 5 degrees; abduction was 10 degrees. Less movement, weakened movement, interference with lifting, driving, reaching overhead, performing repetitive arm movements contributed to his disability. He did not have ankylosis. There was shoulder instability, dislocation or labral pathology suspected. He was unable to perform Cross-body adduction test. After a thorough consideration of the evidence and both the old and new rating criteria, the Board determines that the severity of the Veteran's right should disability is adequately contemplated by the 40 percent rating assigned under Diagnostic Code 5201. 40 percent is the maximum rating allowed under that Diagnostic Code. This rating adequately considers the Veteran's symptoms regarding severe pain and limited movement of his right shoulder, as well as the impact of those symptoms. The Board has considered whether the Veteran is entitled to a higher rating under other diagnostic codes evaluating the shoulder and arm. A rating in excess of 40 percent is available under Diagnostic Codes 5200 (ankylosis of scapulohumeral articulation) and 5202 (humerus impairment). In this current matter, the medical evidence does not show that the Veteran has any humerus impairments or ankylosis of his right shoulder joint. Therefore, assignment of a rating under those diagnostic codes is not warranted in this matter. The Board acknowledges that there was evidence of dislocation and degenerative changes of the acromioclavicular (AC) separation or sternoclavicular dislocation, which affected the range of motion of the shoulder. This symptomatology was noted to be arthritis of the AC joint. A separate rating is not warranted under Diagnostic Code 5203 (impairment of clavicle or scapula) because the assignment of separate ratings for the right shoulder under Diagnostic Codes 5201 and 5203 would constitute impermissible pyramiding and the impairment of function contemplated by these diagnostic codes is overlapping here. 38 C.F.R. § 4.14. Further, the Board is aware that the Veteran has complained of numbness and tingling in his right shoulder. The July 2015 VA Examination demonstrated muscle atrophy and reduced muscle strength of his right shoulder. The Board has considered whether his shoulder disability warrants a separate rating for muscular or nerve damage. Diagnostic Codes 5301 through 5323 address disabilities resulting from muscle injuries, and Diagnostic Codes 8510 to 8719 address nerve disabilities. The Board finds that the assignment of a separate rating based on muscle group involvement would involve impermissible pyramiding in this case because the 40 percent rating assigned herein encompasses the Veteran's entire shoulder disability, including evidence of weakness, atrophy, and limitation of abduction. In this regard, disability of a muscle group is based on impaired joint motion and its ability to perform its full work. 38 C.F.R. § 4.73. As such, separate ratings would constitute impermissible pyramiding. Regarding any nerve damage, the Board finds the evidence does not show that the Veteran experienced nerve damage as part of his right shoulder disability. Therefore, a separate rating for such is not warranted in this matter. Finally, the Board acknowledges that the Veteran's right shoulder disability causes him functional impairment. The Board has considered whether entitlement to a TDIU rating was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, an October 2019 Report of General Information (VA Form 21-0820) reports that the Veteran was on the road often due to his job. The Board does not find that the issue of entitlement to a TDIU is raised by the record. In summation, while the Board acknowledges the impairment caused by the Veteran's right shoulder condition, and is sympathetic to his assertions presented during the current appeal, the preponderance of the evidence is against the assignment of an initial rating in excess of 40 percent for his service-connected right shoulder disability. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.