Citation Nr: 22012403 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-41 263 DATE: March 3, 2022 ORDER Entitlement to a restoration of a 10 percent rating for left shoulder rotator cuff tendonitis, from October 5, 2015, is granted. Entitlement to a restoration of a 10 percent rating for right shoulder rotator cuff tendonitis, from October 5, 2015, is granted. Entitlement to a rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent thereafter, for right shoulder rotator cuff tendonitis, is denied. Entitlement to a rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent thereafter, for left shoulder rotator cuff tendonitis, is denied. FINDINGS OF FACT 1. A November 2015 rating decision reduced the disability ratings for the Veteran's service-connected right and left shoulder rotator cuff tendonitis from 10 percent to noncompensable, effective October 5, 2015. 2. The evidence does not show actual and sustained improvement of the Veteran's right and left shoulder rotator cuff tendonitis to include in the ability to function in the ordinary conditions of life and work. 3. Prior to January 8, 2020, the Veteran's right and left shoulder rotator cuff tendonitis manifested with painful motion, but not flexion limited at shoulder level or less, ankylosis or it's equivalent during flare-ups, impairment of the clavicle, scapula, or humerus, or additional functional loss. 4. Beginning January 8, 2020, the Veteran's right and left shoulder rotator cuff tendonitis manifested with painful, limited motion, with functional loss due to pain in the use of the Veteran's upper extremities; but there was no ankylosis or its equivalent during flare-ups, limitation in motion between his side and shoulder, or limitation in motion to 25 degrees from his side, nor is there evidence of impairment of the clavicle, scapula, or humerus. CONCLUSIONS OF LAW 1. The reduction in rating from 10 percent to noncompensable, effective October 5, 2015, for the Veteran's right shoulder rotator cuff tendonitis is void ab initio. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.344. 2. The reduction in rating from 10 percent to noncompensable, effective October 5, 2015, for the Veteran's left shoulder rotator cuff tendonitis is void ab initio. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.344 3. The criteria for a rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent thereafter, for right shoulder rotator cuff tendonitis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5201. 4. The criteria for a rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent thereafter, for left shoulder rotator cuff tendonitis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 2004 to July 2004, May 2005 to September 2005, January 2007 to June 2007, April 2008 to September 2008, June 2009 to October 2010, February 2014 to February 2015, and from January 2020 to January 2021. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the decisions, the RO reduced the Veteran's assigned 10 percent ratings for his service-connected right shoulder rotator cuff tendonitis (right shoulder disability) and left shoulder rotator cuff tendonitis (left shoulder disability) to noncompensable, effective October 5, 2015. However, a September 2020 rating decision awarded a 20 percent rating, effective January 8, 2020, for both the right and left shoulders. To the extent the Veteran is seeking a restoration of his 10 percent rating and an increased rating, the Board will adjudicate both issues in the decision herein. This matter was previously before the Board in July 2019. In September 2020, a supplemental statement of the case (SSOC) was issued. Additional evidence was added to the record following the September 2020 SSOC; however, automatic waiver applies to evidence submitted by the Veteran. See 38 U.S.C. § 7105 (e). Moreover, the Veteran's representative waived initial RO review in January 2022 correspondence. Therefore, remand is not necessary; and since remand directives have been substantially complied with, the Board will proceed with adjudication of the claims. Stegall v. West, 11 Vet. App. 268, 271 (1998). Rating Reduction The provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105 (e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). Notwithstanding the requisite procedural steps, a rating reduction is not proper unless the veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). Regulations "impose a clear requirement that VA rating reductions... be based upon a review of the entire history of the Veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, 5 Vet. App. at 421. The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). 1. Whether a rating reduction from 10 percent to noncompensable, effective October 15, 2015, for left shoulder disability was proper. 2. Whether a rating reduction from 10 percent to noncompensable, effective October 15, 2015, for right shoulder disability was proper. The Veteran contends that the rating reduction for his service-connected right and left shoulder disabilities was improper. After considering the above regulations and evidence of record, the Board finds the rating reduction was improper and the Veteran's 10 percent rating should be restored for his right and left shoulder disabilities. As noted above, certain procedural guidelines must be followed before a rating reduction can be effectuated, to include notifying the Veteran of the proposed reduction. However, in the Veteran's case, notification procedures were not necessary as the lower rating did not result in a reduction of compensation payments to the Veteran. 38 C.F.R. § 3.105 (e). Notwithstanding the above, a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The November 2015 rating decisions that reduced the Veteran's 10 percent ratings relied on findings in the Veteran's October 2015 VA shoulder examination. In doing so, the RO specifically noted that the examination showed a diagnosed disability with no compensable symptoms for his right shoulder, and limited motion above shoulder level with no painful motion for the left shoulder. The Board notes, however, that the Board's July 2019 decision deemed the October 2015 examination inadequate since it did not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion (ROM) during a flareup based on all procurable information from the record, as well as the Veteran's own statements. In this case, the Veteran reported having flareups of up to four episodes monthly that can last up to four hours. As the examiner failed to estimate to what extent, if any, the Veteran's flareups affect functional impairment, the examination was deemed inadequate. The Board recognizes that the VA examination took place prior to the holding in Sharp; however, post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In this regard, the Board observes March 2016 and August 2016 VA treatment records which show the Veteran complained of shoulder pain. Additionally, his subsequent January 2020 VA shoulder examination showed abnormal range of motion bilaterally, which resulted in an increased rating to 20 percent. Furthermore, in his October 2015 examination, the Veteran reported intermittent left shoulder pain on overhead motions and when doing pushups. Notably, the Veteran is competent to report symptoms and the Board finds his reports are credible given that the Veteran was released from active duty eight months prior to the examination and records show the Veteran maintained his status in the Army National Guard with additional active duty service in 2021. Therefore, it is likely the Veteran would continue to experience painful motion while using his shoulders during training and/or subsequent periods of active duty. Therefore, given the Veteran's reports of painful motion coupled with objective medical evidence indicating reports of pain and abnormal range of motion bilaterally, the Board finds the evidence persuasively shows that the Veteran's bilateral shoulder disability did not show actual and sustained improvement; thus, the rating reduction was improper. Accordingly, the reduction of the Veteran's disability ratings for his right and left shoulder disabilities is void ab initio, and the 10 percent ratings are restored. See 38 C.F.R. § 3.344 (c); see also Faust, supra. Increased Ratings 1. Entitlement to a rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent thereafter, for right shoulder disability. 2. Entitlement to a rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent thereafter, for left shoulder disability. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as, industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. As to claims of entitlement to an increased evaluation, as opposed to a higher initial evaluation, "the relevant temporal focus... is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, at 509 (2007). In this regard, the Board notes that the Veteran filed his increased rating claim in June 2015; therefore, the Board will consider evidence beginning from one year prior to the claim. 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. See 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533, at *10 (Fed. Cir. June 3, 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran is in receipt of staged ratings and his bilateral shoulder disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, which pertains to limitation of motion of the arm. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. In the instant case, the Veteran is left-hand dominant, so his left shoulder is considered the major upper extremity. Pursuant to Diagnostic Code 5201, a 20 percent evaluation is warranted for motion of the major arm limited to shoulder level. A 30 percent rating is warranted for motion of the major arm limited to midway between the side and shoulder level. A maximum 40 percent rating is assignable for the major upper extremity, when motion is limited to within 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The standard ranges of motion for shoulder abduction and forward elevation (flexion) are 180 degrees. 38 C.F.R. § 4.71, Plate I. Shoulder level is 90 degrees. Id. When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flareups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Therefore, painful motion should be considered to determine whether a higher rating is warranted on that basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the shoulder, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. Effective February 7, 2021, Diagnostic Code 5201, governing limitation of motion of the arm, clarified that loss of motion includes flexion or abduction, and provides specific range of motion measurements for the ratings (i.e., midway between side and shoulder level defined as 45 degrees, at shoulder level defined as 90 degrees). Additionally, Diagnostic Code 5202 governing impairment of the humerus defines movement only at shoulder level as "flexion and/or abduction at 90 degrees." Merits As noted above, the Veteran's 10 percent rating has been restored effective October 5, 2015 for both his service-connected right and left shoulder. Thus, the Veteran is in receipt of a 10 percent rating prior to January 8, 2020, and a 20 percent rating thereafter. After having reviewed all the evidence of record, the finds that an increased rating is not warranted for either period on appeal. Period prior to January 8, 2020 For the period prior to January 8, 2020, the evidence shows that the Veteran received a VA examination for his shoulders in October 2015. In the examination, the Veteran reported intermittent left shoulder pain on overhead motions and when doing pushups. He further reported functional loss with a decrease in range of motion and with overhead movements during times of flares. Findings showed range of motion for his right shoulder disability was normal, while his left shoulder showed flexion and abduction limited to 170 degrees, and external and internal rotation were limited to 80 degrees. Pain was noted on the examination, but pain did not cause functional loss. There was no evidence of pain with weightbearing, no localized tenderness or pain on palpation, or evidence of crepitus for his left shoulder. The Veteran was able to perform repetitive use testing with no loss in function or range of motion. As noted previously, this examination was deemed inadequate in the Board's July 2019 decision since the examiner did not consider the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the examination took place prior to the Court's holding in Sharp. Nevertheless, when considering the Veteran's reported functional loss, the Board still finds that a rating greater than 10 percent would not be warranted. Here, the Veteran was found to have normal range of motion for his right shoulder, and his left shoulder was 10 degrees shy of having normal range of motion. Therefore, even considering functional loss, the Board finds it highly unlikely that any reduction in motion would have limited the Veteran's right or left shoulder motion to shoulder level (90 degrees) as necessary for a 20 percent rating. This finding is further supported by the examination showing no additional loss after repetitive use testing or evidence of pain with weightbearing. Moreover, VA treatment records show the Veteran participates in an archery club which would seemingly require use of his shoulders, and there is no evidence that suggest his right or left shoulder disabilities limited or prevented the Veteran from participating in his archery class. Additionally, an October 2015 VA treatment record shows the Veteran attributed the pain in his shoulders to residual pain from his neck. Consistent with the Veteran's assertion is a July 2015 treatment record which shows the Veteran had low back pain and neck pain that radiates to his left shoulder. Moreover, an August 2016 treatment record shows the Veteran had tight muscles over the left subaxial and trapezius muscles. As a result, the Veteran was given lumbar and cervical injections in September 2016. Otherwise, there was no evidence of further limitation of motion to the Veteran's right or left shoulders or any other abnormalities that would warrant a higher rating. Based on the above and remaining evidence, the Board finds a rating in excess of 10 percent is not warranted for the period prior to January 8, 2020 as the Veteran's VA examination and treatment records show no compensable range of motion for his right or left shoulder disability or functional loss that would warrant a higher rating. Nor was there impairment of the humerus or scapula, recurrent dislocations, ankylosis, or any other abnormality. Thus, any functional loss incurred has been contemplated by the Veteran's assigned 10 percent rating. Therefore, as the evidence is more persuasively against the assignment of a higher rating, the claim for a rating greater than 10 percent for right and left shoulder disability is denied. The Board has considered the benefit of the doubt doctrine; however, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533 at 10 (Fed. Cir. June 3, 2021). Period beginning January 8, 2020 For the period beginning January 8, 2020, the Veteran was awarded a 20 percent rating for his right and left shoulder disability based on findings in the Veteran's January 8, 2020 VA examination. In the examination, the Veteran was found to have abnormal range of motion and functional loss for his right and left shoulder disabilities. Specifically, the examination showed range of motion findings for his right shoulder included flexion limited to 150 degrees flexion, abduction limited to 130 degrees, external rotation limited to 60 degrees, and internal rotation limited to 90 degrees. The examiner found pain in all planes, including pain with weightbearing, and localized tenderness or pain on palpation. It was also noted that the decreased range of motion caused functional loss that affected the use of the Veteran's upper extremity. Similarly, left shoulder range of motion was found to be abnormal to include flexion limited to 140 degrees, abduction limited to 115 degrees, external rotation limited to 45 degrees, and internal rotation limited to 90 degrees. Like the right shoulder, there was pain in all planes, pain with weightbearing, localized tenderness or pain on palpation, and functional loss that affected the use of the Veteran's upper extremity. Based on the Veteran's decreased range of motion and with consideration of functional loss, the Veteran was assigned a 20 percent rating for his right and left shoulder disabilities, effective January 8, 2020. The Board finds, however, that a higher rating is not warranted. Under Diagnostic Code 5201, a higher rating would require a minimum of limitation of motion midway between the Veteran's side and shoulder for his dominant side and limitation of motion to 25 degrees on his minor side. Here, the Veteran's VA examination shows his right and left shoulders exhibited a decrease in motion; however, this decrease did not warrant a compensable rating for either shoulder under Diagnostic Code 5201. Nonetheless, the Veteran was granted a 20 percent rating based on the application of functional loss. See 38 C.F.R. §§ 4.40 and 4.45. Even with functional loss, the Veteran was still able to raise his right and left shoulders above shoulder level. In addition, internal rotation was found to be normal at 90 degrees bilaterally. Although the Veteran had a positive Hawkins test for his right shoulder, and a positive Hawkins and Empty-Can test for left shoulder, both of which could signify a rotator cuff tendinopathy or tear, there was no further limitation of function. Moreover, he was found to have normal shoulder x-ray results. Further, the Veteran was able to perform repetitive use testing with no loss in function or range of motion; there was no reduction in muscle strength; and pain, fatigue, weakness, fatigability, or incoordination did not limit functional ability after flareups or repeated use. Muscle strength testing was normal, and there was no muscle atrophy or ankylosis. Therefore, as the Veteran did not exhibit any additional limitation in motion in his right or left shoulders, and since functional loss has already been considered, a rating greater than 20 percent is not warranted for the Veteran's right or left shoulder disability. Likewise, a separate rating is not warranted under Diagnostic Codes 5200, 5202, or 5203 as there is no evidence of ankylosis, impairment of the humerus or clavicle, or other abnormalities. The Board notes that there are no other treatment records relevant to the Veteran's shoulder disabilities for the Board's consideration for this period on appeal. The Board has also considered the regulation changes to Diagnostic Codes 5201 and 5202, effective February 7, 2021. However, the evidence does not show limitation of motion less than 90 degrees or impairment of the humerus. Thus, the new regulations are inapplicable. Accordingly, the Board finds the most probative evidence of record persuasively weighs against finding a higher rating for service-connected right and left shoulder disabilities. As such, the claim for an increased rating is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.