Citation Nr: 22011389 Decision Date: 02/28/22 Archive Date: 02/28/22 DOCKET NO. 07-05 613 DATE: February 28, 2022 ORDER Prior to February 16, 2017, a rating in excess of 20 percent for a right trapezius strain (right shoulder disability) is denied. From February 16, 2017, a rating of 30 percent, but no higher, for right shoulder disability is granted; subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to February 16, 2017, the Veteran's right shoulder disability was productive of range of motion at shoulder level. 2. From February 16, 2017, the Veteran's right shoulder disability was productive of limitation of motion between the side and shoulder level without ankylosis. CONCLUSIONS OF LAW 1. Prior to February 16, 2017, the criteria for a rating in excess of 20 percent for a right shoulder disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. 2. From February 16, 2017, the criteria for a rating of 30 percent, but no higher, for a right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to February 1991. This case comes before the Board on appeal from a December 2012 rating decision. Previously, in a December 2012 decision, the Board granted a 20 percent rating for right trapezius strain. The RO implemented the Board's decision in a December 2012 rating decision. The Veteran did not appeal the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Rather, he filed a notice of disagreement (NOD) in February 2013. Notwithstanding the fact that the December 2012 rating decision informed him that he could file an NOD, the Veteran is precluded from filing an NOD with that rating decision as the Board's December 2012 decision became final when it was issued. 38 U.S.C.§ 7104(a); 38 C.F.R. § 20.1100. Any action taken by the RO on the Veteran's NOD would place the RO in the prohibited position of reviewing the Board's decision on the same factual basis, which is impermissible. Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Donovan v. Gober, 10 Vet. App. 404, 409 (1997) (holding that an RO must not be placed in the anomalous position of reviewing the decision of the Board, a superior tribunal); VAOPGCPREC14-95 (opining that the RO may not consider a CUE motion attacking an unappealed Board decision because doing so would essentially allow an RO to collaterally consider and overturn conclusions reached by the Board concerning the issues raised). Nonetheless, to the extent the Veteran's NOD initiated appellate review with the ratings assigned, the Board finds that the increased rating issue on appeal is limited to entitlement to increased rating beginning immediately after the Board's December 2012 decision. Similarly, in a March 2018 decision, the Board denied the Veteran's claim of entitlement to special monthly compensation (SMC) at the rates provided by 38 U.S.C. § 1114(p) and (r)(2) based on the need for regular aid and attendance at a higher level of care. The Veteran appealed the Board's decision to the Court, and the Court affirmed the Board's denial of SMC in a June 2019 decision. At the November 2020 Board hearing, the Veteran noted that he believes his service-connected disabilities warrant an award of SMC at a higher rate. However, his disagreement was based on his disagreement with the Court's affirmance of the Board's denial of SMC at a higher rate rather than any new information regarding his need for aid and attendance at a higher level of care or entitlement to SMC based on other criteria. Thus, the Board finds that entitlement to SMC has not been raised in connection with this appeal, other than to the extent that the Court has already reviewed the issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). In July 2017, the Veteran provided testimony concerning this claim during a videoconference hearing before Veterans Law Judge (VLJ) Kessel. A transcript of the hearing is of record. In November 2020, the Veteran testified during a videoconference hearing addressing the same claim before VLJ Crawford. By way of a February 2021 letter, the Veteran was offered the opportunity to appear at a hearing before a third VLJ. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The letter informed the Veteran that if no response was received within 30 days of the date of the letter, the Board would assume he did not want a third hearing. No response was received; thus, no further action is needed. When last before the Board in April 2021, the Board asked the regional office (RO) to obtain outstanding private treatment records after receiving authorization from the Veteran. The RO asked the Veteran to provide authorization to obtain private treatment records in June and July 2021. The Veteran, however, returned incomplete forms in response and, as a result, the private treatment records could not be obtained. Therefore, the Board finds that VA has fulfilled its duty to assist and further attempts to receive authorization to obtain such records from the Veteran would be futile. 38 C.F.R. § 3.156(d); see also Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that the duty to assist is not a one-way street). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2). 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). Entitlement to a rating in excess of 20 percent for a right shoulder disability. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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. Thus, separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). For musculoskeletal disabilities, such as those to the shoulder, there are additional criteria. 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion; a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Analysis The Veteran maintains that the 20 percent rating for his service-connected right shoulder disability does not adequately reflect the severity of his symptoms. The Veteran's shoulder disability is rated under 38 C.F.R. § 4.71a, DC 5201. Relevant to this appeal, DC 5201 provides for a 20 percent rating for motion limited at the shoulder level in the dominant extremity; a 30 percent rating for motion limited to midway between side and shoulder level in the dominant extremity; and a 40 percent rating for motion limited to 25 degrees from side in the dominant extremity. Effective February 7, 2021, the criteria were amended. See 82 Fed. Reg. 76453 (Nov. 30, 2020, as corrected). As the new criteria primarily clarified the degrees of the limited motion, they do not change the outcome of the case. In August 2013, VA received an unsigned statement from the Veteran's treating physician noting that the Veteran takes prescription medications and steroid packs and injections to treat his shoulder. The prescription can often be coupled with sleep complications. The Veteran had also been prescribed a brace and physical therapy. A VA treatment record from September 2013 notes range of motion in the shoulder to 130 degrees on forward flexion, to 90 degrees on abduction, to 70 degrees on external rotation, and to 60 degrees on internal rotation with complaints of discomfort. The right shoulder clavicle was intact per palpation. A VA treatment record from November 2013 notes range of motion to 120 degrees on forward flexion, to 90 degrees on abduction with discomfort, and to 50 degrees in external rotation. A December 2013 VA treatment record notes good range of motion in the shoulders. A May 2016 VA treatment record notes decreased range of motion at the right shoulder. Another VA treatment record from May 2016 notes that the Veteran is unable to elevate his right shoulder past 90 degrees. A July 2016 VA treatment record notes that the Veteran's report of limited use of his upper and lower extremities secondary to severe pain despite normal appearing muscle tone in bilateral extremities. The Veteran also resisted movement of extremities due to severe pain. A VA treatment record from August 2016 notes that the Veteran had decreased range of motion and mild pain on passive and active motion in the right shoulder. The Veteran was afforded a VA examination of his right shoulder in February 2017. The Veteran reported treatment with acupuncture, physical therapy, occupational therapy, muscle relaxer, pain medication, and anti-inflammatories. The Veteran stated that he has flare-ups that prevent him from going outward to forward and backwards, severe and chronic muscle spasms lasting days or months, sharp pain lasting hours, days, or weeks. The chronic pain is a 9/10 all the time. Functional loss was described as difficulty shaving, bathing, dressing, feeding, and getting in and out of the shower. Range of motion was to 60 degrees on flexion, 50 degrees on abduction, and 20 degrees on external and internal rotation in the right shoulder. Range of motion was to 150 degrees on flexion, 120 degrees on abduction, and 90 degrees on external and internal rotation in the left shoulder. There was no reduction in range of motion on repetition. There was evidence of pain on weight-bearing. The examiner opined that there could be further reduction in range of motion during a flare-up or after repeated use over time but stated that estimates could not be provided without resort to mere speculation. Moderate tenderness and severe sharp pain were noted on palpation as well as active and passive range of motion. Muscle strength was noted as 2/5 active movement with gravity eliminated. There was no muscle atrophy or ankylosis. It was noted that the Veteran uses a shoulder brace regularly and that the Veteran's functioning was not so diminished that amputation with a prosthesis would equally serve the Veteran. Functional impact was noted as writing, lifting, grabbing, pushing, pulling, or any type of work. A VA treatment record from May 2017 notes pain intensifies with lifting the arm. The Veteran testified at a July 2017 Board hearing. The testimony taken primarily involved the issue of entitlement to SMC at a higher rate that was then before the Board and has since been adjudicated by the Court. A VA treatment record from October 2017 notes active and passive range of motion to 90 degrees on flexion and abduction. An August 2018 VA treatment record notes range of motion on flexion and abduction to 70 degrees and on internal and external rotation to 35 degrees. Motor muscle strength was noted as 5-/5, showing a slight decrease in muscle strength. Another August 2018 VA treatment record notes right shoulder pain at 8-9/10. A VA treatment record from March 2019 notes that right shoulder muscle strength was 4+/5, showing some decrease in muscle strength. A July 2019 VA treatment record notes shoulder pain is mainly present with activity. A September 2020 VA treatment record notes pain at 9/10 with lifting, reaching out, and lying on the shoulder. The pain was noted as in the anterior, lateral, and posterior aspects of the shoulders. An October 2020 VA treatment record notes that the Veteran had shoulder pain with decreased range of motion. The Veteran testified at a Board hearing in November 2020. The Veteran testified that he has a sharp pain at 9/10 when he tries to lift his arm and a dull, constant pain and muscle spasms throughout the day. The Veteran also reported difficulty elevating his arm, lifting heavy objects, and performing daily hygiene tasks. He also reported difficulty reaching down into the refrigerator and up to a cabinet. The Veteran noted that his right shoulder affects his sleep in that he wakes up from pain whenever he rolls on it. The Veteran also stated that he thought he was better off without the arm. A September 2021 VA treatment record notes that the Veteran has used an "hwave home unit" once or twice per day on his shoulder to relieve pain. Pain was noted at 7/10. When the claim was last on appeal in April 2021, the Board found that the rationale provided for range of motion estimates after repeated use over time at the June 2018 (date signed) VA examination was inadequate and remanded the claim for a new VA examination. Consistent with the Board's April 2021 remand, the Veteran was afforded a new VA examination of his shoulders in October 2021. The Veteran initially reported that he could not raise his right arm above waist level. The Veteran stated that he did not have flare-ups of the right shoulder. Range of motion was to 55 degrees on flexion, 50 degrees on abduction, 30 degrees on internal rotation, and 40 degrees on external rotation for both passive and active range of motion. Pain was noted in all range of motion testing and on weight-bearing. There was no further loss of range of motion on repetition or with repeated use over time. Functional loss was then noted as cannot raise arm above chest level and minimal lifting due to pain. Pain noted as mild wincing with palpation on the right trapezius was reported. Ankylosis was not found on examination. The Veteran's functioning was not so diminished that amputation with a prosthesis would equally serve the Veteran. A VA muscle injury examination was also conducted. Muscle strength was noted as normal. It was noted that the Veteran had potential injury to muscle group I. Functional impacts were noted as raising right arm above the chest and unable to paint or do ceiling work. In an October 2021 VA treatment record, the Veteran noted pain at 6/10. The Board finds that the October 2021 VA examination is adequate to rate the Veteran's right shoulder as it includes all required testing on active and passive range of motion and testing for pain in weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examiner also noted that there would not be further functional impairment of the Veteran's right shoulder after repeated use over time. Further, the Veteran reported that he no longer had flare-ups of his right shoulder. Rather, his right shoulder had become productive of constant pain and limited use of the arm. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As the Veteran's right shoulder disability has been said to have progressed or worsened since injury, the Board finds that symptoms previously reported as flare ups were shown as non-flare-up symptoms at the October 2021 VA examination which manifests some progression of impairment. Thus, the Board finds that the October 2021 VA examination complies with the directive of the April 2021 Board remand, Stegall v. West, 11 Vet. App. 268 (1998), and that further remand would not benefit the claim. 38 C.F.R. § 3.156(d). Thus, the Board will rate the claim based on the available record. The Board finds that a rating in excess of 20 percent is not warranted prior to February 16, 2017. Prior to this date, the Veteran's right shoulder disability was productive of pain and limited range of motion to the shoulder level. For instance, the September 2013 VA treatment record notes forward flexion of the shoulder to 130 degrees and the May 2016 VA treatment record notes the Veteran's difficulty with raising his right arm above shoulder level. Other VA treatment records prior to February 16, 2017 are consistent with decreased range of motion to at least the shoulder level and pain on motion. It is acknowledged that VA treatment records note that the Veteran was taking medication to relieve pain from his service-connected disabilities, including his shoulders. It was also noted in the August 2013 statement from his treating clinician that the Veteran had been prescribed a brace. However, there was no report of ankylosis or functional limitation that would warrant a higher rating. From February 16, 2017, the Board finds that a 30 percent rating, but no higher, for the right shoulder disability is warranted. The February 2017 VA examination shows forward flexion to 60 degrees, the October 2018 VA treatment record shows forward flexion in active range of motion to 40 degrees without pain, and the October 2021 VA examination shows forward flexion to 50 degrees. This demonstrates range of motion limited to midway between the side and shoulder, but not more nearly approximating symptoms limiting range of motion to 25 degrees from the side. The Veteran did report being unable to raise his right arm above his waist at the October 2021 VA examination, but range of motion testing at that examination, other examinations, and in VA treatment records shows that the Veteran does have range of motion in his right shoulder and can lift his arm to at least midway between the side and shoulder. Thus, the Board finds that the range of motion shown in VA examinations and in VA treatment records to be the most probative evidence of record regarding the Veteran's right shoulder motion. Further, there were no reports of ankylosis or instability that would warrant a higher rating. The decrease in strength in the right shoulder is contemplated by the 30 percent rating assigned and does not warrant a further rating for a muscle group injury. 38 C.F.R. § 4.40. The Veteran did report using a sling or a brace during this period, but there are no further indications of symptoms or functional limitation in the right shoulder other than pain, limited range of motion, or reduced strength that would warrant a higher rating. Moreover, the evidence does not show functional ankylosis. The Board has found that a 30 percent rating should be effective from February 16, 2017. In doing so, the Board notes range of motion decreased to midway between the side and shoulder level around the time of the February 2017 VA examination. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board also acknowledges the Veteran's testimony that he feels that his right arm is useless or that he would be better off without it. The consequences of losing an arm, even one that is disabled or not very useful, indicates severe impairment. However, VA examinations have consistently found that the Veteran would not be equally well-served by amputation and prosthesis. The Board finds the VA examination findings in this regard to be more credible and probative, as an examiner is uniquely qualified to understand the medical and practical consequences of amputation. The Veteran has also reported sleep disturbance associated with his right shoulder disorder. Throughout the claims period, the Veteran has been in receipt of a 100 percent rating for depression under 38 C.F.R. § 4.130, DC 9434 pursuant to the General Rating Formula for Mental Disorders which contemplates sleep disturbance. Thus, an additional or extra-schedular rating for the Veteran's right shoulder is not warranted. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In conclusion, after affording the Veteran the benefit of the doubt, a rating of 30 percent, but no higher, is granted from February 16, 2017 for the Veteran's service-connected right shoulder disability and a rating in excess of 20 percent prior to February 16, 2017 is denied. 38 C.F.R. § 3.102. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. George 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.