Citation Nr: 22013537 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-29 899 DATE: March 9, 2022 ORDER Entitlement to a rating in excess of 20 percent for a left shoulder disability is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran's acromioclavicular (AC) joint reconstruction with surgical repair of the distal left clavicle (left shoulder disability) results in additional and separate symptoms or that it results in limited motion beyond 60 degrees abduction. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for left shoulder disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.69, 4.71a, DC 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2001 to May 2005. This matter is on appeal from a July 2013 rating decision and was previously remanded by the Board in January 2019 and again in September 2021. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. By way of history, the Veteran was granted service connection for a residuals of a left shoulder surgery at a 10 percent rating, effective May 20, 2005, by an October 2007 rating decision. Pursuant to his claim for an increased rating, he was ultimately assigned a 20 percent by an April 2017 rating decision. That rating decision also granted a separate rating of 20 percent for polyneuropathy of the left upper extremity and a separate noncompensable rating for a left shoulder scar. In an April 2017 Statement of Case, the AOJ recharacterized the left shoulder issue as AC joint reconstruction with surgical repair of the left distal clavicle with residual reduced range of motion and pain. The Veteran, through his representative, filed a VA Form 9, in June 2017, also arguing for an earlier effective date for the 20 percent rating. The Board notes that in April 2018, the Veteran filed an NOD to the April 2017 rating decision, addressing the ratings and effective dates for (a) AC joint reconstruction with surgical repair of the left distal clavicle; (b) LUE polyneuropathy; and (c) the left shoulder scar. Pursuant to a January 2019 Board remand and additional development, the AOJ granted an increase from 20 percent to 30 percent for LUE polyneuropathy, effective September 30, 2020. The next day, a January 15, 2020, an SOC was issued addressing (1) a rating in excess of 20 percent LUE polyneuropathy; (2) a compensable rating for a left shoulder scar; (3) an effective date prior to September 30, 2010, for the 20 percent rating for AC joint reconstruction with surgical repair of the left distal clavicle with residual reduced range of motion and pain; (4) an effective date prior to September 30, 2010, for the noncompensable rating for the PO left shoulder scar; (5) an effective date prior to September 30, 2010, for the 30 percent rating for LUE polyneuropathy. However, no Substantive Appeal, VA Form 9 or equivalent, has been filed as to the matters addressed in the January 15, 2020 Statement of Case. Therefore, those matters are not on appeal. The matter before the Board is whether the Veteran is entitled to a rating higher than 20 percent for his AC joint reconstruction with surgical repair of the left distal clavicle. 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) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). 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 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. VA thus must consider the claim pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (DC 5200), limitation of motion of the arm (DC 5201), other impairment of the humerus (DC 5202), or impairment of the clavicle or scapula (DC 5203). Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the evidence shows that the Veteran is right-hand dominant, his right shoulder is his major shoulder for rating purposes. A rating under DC 5201 is warranted when the evidence demonstrates limitation of motion of either arm at shoulder level, or midway between side and shoulder level of the minor arm (20 percent); limited to midway between side and shoulder level for the major arm, or to 25 degrees from the side for the minor arm (30 percent); or limitation of motion to 25 degrees from the side for the major arm. (40 percent schedular maximum) 38 C.F.R. § 4.71a, DC 5201. 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 revised VA regulations, effective February 7, 2021, clarify that limitation of motion of the arm under DC 5201 includes either flexion or abduction. The revised regulations also clarify that "shoulder level" equates to flexion and/or abduction limited to 90 degrees, "midway between side and shoulder level" equates to flexion and/or abduction limited to 45 degrees, and "To 25 degrees from side" equates to flexion and/or abduction limited to 25 degrees from side. The Veteran filed an increased rating claim in September 2010, asserting that his left shoulder disability worsened beyond a rating of 10 percent. He reported that his symptoms now include additional problems in his left pinky finger. See September 2010 VA 21-0820 Report of General Information. In an August 2011 correspondence, the Veteran described increased pain in the left shoulder and suspected additional damage caused by the left shoulder injury. While the Veteran was scheduled for a VA examination to determine the severity of his left shoulder condition in January 2011, July 2013, and February 2017, he failed to report to his scheduled evaluations. After a request for a new examination, the Veteran was finally evaluated in March 2017. There, he reported that he noticed decrease in his range of motion. He complained of left shoulder pain that radiates up to the neck and down the left arm with hand numbness. During episodes of flareups, he reported increased pain so severe, he requires cortisone injections at the emergency department. He indicated that he is unable to lift, grab, or pull objects that weigh more than 15 pounds with his left arm. His left shoulder flexion was to 120 degrees and abduction to 180 degrees. His external rotation was to 80 degrees and internal rotation were to 90 degrees. He reported moderate level of pain with flexion and abduction. He was able to complete a repetitive use testing without resulting in additional loss of range of motion with both flexion and abduction to 180 degrees. His external rotation was to 90 degrees and his internal rotation was to 80 degrees. The Veteran was not examined immediately after repetitive use over time and the examining physician was unable to determine whether pain, weakness, fatigability, or incoordination limit functional ability with repeated use over time. A muscle strength test revealed normal strength in both forward flexion and abduction. There was no evidence of ankylosis or muscle atrophy. There was no evidence of pain of joints in non-weight bearing movement. He was unable to perform a passive range of motion as it could cause injury to the Veteran. Further testing revealed a rotator cuff condition as his 'empty-can test' was positive. He did not demonstrate any additional condition with should instability, dislocation, or labral pathology. There was no evidence of a clavicle, scapula, AC acromioclavicular joint or sternoclavicular joint condition suspected. There was no evidence of impairments of the humerus. Pursuant to the March 2017 VA examination, the Veteran was assigned a rating increase of 20 percent, effective September 30, 2010. However, the Veteran continued to assert that his left shoulder disability results in symptoms higher than 20 percent. The Veteran highlighted his need for emergency medical attention during episodes of flareups. He also argued that the examiner failed to adequately address loss of range of motion due to pain during flareups. See June 2017 VA Form 9. In January 2019, the Board remanded the matter to afford the Veteran a new VA examination. It found the March 2017 VA examination inadequate as the examiner failed to adequately address the Veteran's range of motion in degrees for the left shoulder with weight-bearing and non-weight bearing in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016). The new examination was to address the Veteran's functional impairment, range of motion of the shoulder in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner was also to address whether the Veteran demonstrated any form of ankylosis. At an October 2020 Disability Benefits Questionnaire, the Veteran reported worsening shoulder pain with numbness in his left hand. The pain affects his sleep and he now experience tingling sensations in the left elbow and left fingers. He described intermittent prickling sensation in the tips of his thumb, index fingers, and pinky. He reported visiting the emergency department approximately 8 to 9 times for his shoulder pain. He indicated that he cannot sleep on his left side or carry heavy objects. He is unable to hyperextend his left arm for a long period of time. He cannot paint walls in his house and cannot complete pushups without shifting his weight on his right side. An initial range of motion testing revealed forward flexion to 85 degrees and abduction to 60 degrees. His external rotation was to 30 degrees and his internal rotation was 45 degrees. His left shoulder disability impacts his ability to reach due to pain in flexion, abduction, external rotation, and internal rotation. There was evidence of pain with weight bearing but no objective evidence of crepitus. He was able to complete a repetitive use testing with at least three repetitions but resulting in additional loss of motion. His flexion was limited to 80 degrees and his abduction was limited to 60 degrees. His external rotation remained at 30 degrees and his internal rotation was to 45 degrees. While the Veteran was not examined immediately after repetitive use overtime, the examiner found that pain, weakness, fatigability or in coordination significantly limit functional ability with repeated use over a period of time. Symptoms such as pain, fatigue, weakness, lack of endurance all cause functional loss of the left shoulder. Further evaluation documented no changes in his range of motion. The examiner also noted that the Veteran's flare ups cause weakness, fatigability or incoordination that limit functional ability. Symptoms such as pain, weakness, fatigue, lack of endurance all cause functional loss of the left shoulder. Even when considering flare ups, the Veteran's range of motion remained the same with flexion at 80 degrees and abduction at 60 degrees, with external rotation at 30 degrees, and internal rotation at 45 degrees. The Veteran also undoubtedly experience less movement than normal. Further motion testing showed that when the left arm was positioned at 60 degrees abduction, his internal rotation reduced to 5 degrees. The examiner noted that he was unsure as to why the Veteran now exhibited significant reduced range of motion compared to his prior examinations. A muscle strength test revealed normal strength in forward flexion but a slight reduction in strength in abduction with a score of four out of five. The Veteran did not exhibit any muscle atrophy, nor did he demonstrate any signs of ankylosis. While he did have reduced mobility, his movement was not fixed in any position. The Veteran was unable to perform the Hawkins Impingement Test or the Empty Can test. He was negative on the Eternal Rotation/Infraspinatus Strength Test and the Lift-Off Subscapularis Test. In accordance with Correia, the Veteran demonstrated objective pain in non-weight bearing, but showed no change upon range of motion testing. The examiner specifically opined that the Veteran did not exhibit any form of ankyloses as there was no permanent fixed position of the joint. However, the Veteran did, in fact, demonstrate reduced range of motion of the shoulder that appeared to have progressed from his prior examination in March 2017. There, his range of motion testing revealed flexion of 120 degrees, abduction to 180 degrees, and external rotation to 80 degrees and internal rotation to 90 degrees. After repetitive testing, his flexion increased to 180 degrees with abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 80 degrees. On the 2020 examination, the Veteran demonstrated a reduced range of motion. However, the shoulder was not fixed at any one position. The examiner noted the Veteran could have tendinopathy that developed overtime. The AC joint was open and there was no evidence of fusion o the GH joint. There was no impairment of the humerus, such as malunion, fibrous union, nonunion (false flail joint) of the scapulohumeral joint, or loss of the head (flail shoulder). While the distal clavicle was the site of the injury, the humerus was no involved in the original injury. The distal clavicle was removed, resulting in the open AC joint. The service-connected surgery involved the resection of the distal clavicle on the left. In a November 2020 correspondence, the Veteran argued that in addition to a higher rating, he is also entitled to a separate rating since his left shoulder disability involves both the clavicle and scapula, citing to the M21-1, Part III, Subpart iv, Chapter 4, Section A.3.a. He specifically asserted that separate evaluations may be given for disabilities of the shoulder an arm under 38 C.F.R. § 4.71a Diagnostic Code 5201, 5202, or 5203 if the manifestations represent separate and distinct symptomatology that are neither duplicative nor overlapping. Because the October 2020 examining physician stated that the removal of the distal clavicle resulted in an "open AC joint" and did not specify which symptoms were so distinctively separate that separate ratings were warranted under different diagnostic codes. He contends that the "open AC joint" constitutes either nonunion or malunion for the purpose of a separate rating under Diagnostic Code 5203, separate from the existing 20 percent currently rated under Diagnostic Code 5201 for limitation of motion. Therefore, the Board in September 2021 remanded the matter for a medical opinion which would address whether there are manifestations other than limited motion and pain due to the left shoulder disability which are due to the resection of the distal left clavicle which may be assigned a separate rating under Diagnostic Code 5203, for malunion, dislocation, nonunion with or without loose movement. In other words, the Board requested clarification regarding whether the Veteran has manifestations which represent separate and distinct symptoms that are neither duplicative nor overlapping which may serve as a basis for a separate disability rating. In clarifying the Veteran's left shoulder symptoms, the examiner issued a medical opinion in September 2021. In it, she indicated that the Veteran did not have other separate and distinct symptoms from the open AC joint that are duplicative or overlapping with pain and limited motion. The open AC joint directly resulted from the distal clavicle resection, which was a surgical treatment for the Veteran's AC joint separation injury. In March 2004, the Veteran was evaluated by Dr. B.S. for shoulder pain for a year, in which the Veteran reported a history of weightlifting. That examination showed tenderness of the joint and a full range of motion of the shoulder. X-ray showed degenerative arthritis with erosion of the AC joint. The Veteran elected surgical treatment in which 6-7mm of the distal clavicle was resected without complications. The Veteran had painful overhead motions of the shoulder. He underwent surgical resection of the distal clavicle in April 2004 and had improvement documented at his visit with Dr. J.P., in which he reported that he had improved symptoms after the surgery, but still had pain with certain movements. The examination showed full symmetrical range of motion without pain. The x-rays showed a well-healed resection. It is clear that the Veteran has some residual painful motions, but there were no other separate and distinct symptoms other than the surgical repair, neither duplicative nor overlapping. Overall, the Board finds that the medical evidence of record does not support a rating higher than 20 percent for a left shoulder disability. The limitation of motion in this case does not meet the criteria for a higher rating. Because the Veteran's limitation of range of motion is greater than the objective criteria for a 20 percent rating, his limitation does not qualify for a higher, 30 percent rating. His left shoulder range of motion was at most limited to 80 degrees flexion and 60 degrees abduction. Even considering pain and repeated use over time, the Veteran's left shoulder was not limited at the midway point between his side and shoulder level or 45 degrees abduction, which does not warrant a rating of at least 30 percent under the old or the revised diagnostic code. While there is interference with his ability to reach overhead, the effect of the pain was not found to be so pronounced that the functional limitations more closely approximated the criteria for any rating higher than 20 percent. The Veteran has suggested that his left shoulder disability results in pain and stiffness, which may equate to ankylosis. Generally, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992). However, none of the VA examiners or treatment providers ever found the Veteran to have ankylosis, and all of the remaining medical evidence indicates that while he has significant limitation of motion in his shoulder movement, he nonetheless has always had at least some range of motion, even if painful. The Board has considered the Veteran's lay statements asserting that his disability is worse than it is currently rated. He is competent to report symptoms because this requires only personal knowledge as it comes to his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this condition according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's left shoulder disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has considered whether a separate rating is warranted under other diagnostic codes. However, as discussed by the September 2021 examiner, the Veteran's left shoulder disability did not result in additional and separate symptoms from his open AC joint. As such, separate evaluations under diagnostic codes 5200, 5202, and 5203 are not appropriate as the medical evidence does not support the showing of ankylosis (or the functional equivalent thereof), dislocation, suspected labral pathology, impairments or loss of head or malunion of the humerus. While diagnostic code 5203 addresses the impairment of the clavicle or scapula, the Veteran has already been compensated for such condition under diagnostic code 5201 for limited motion. Furthermore, it has not been shown that the Veteran's condition results in dislocation or nonunion of the joint. (Continued on the next page) Accordingly, the Board concludes that the weight of the evidence demonstrates that a rating in excess of 20 percent for the Veteran's left shoulder disability is not warranted and the claim is denied. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Yeh, Nicole 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.