Citation Nr: 22014044 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 12-22 520 DATE: March 11, 2022 ORDER Entitlement to an initial rating in excess of 20 percent for degenerative joint disease of the left shoulder is denied. Entitlement to an initial rating in excess of 20 percent for residuals of a left elbow fracture is denied. FINDINGS OF FACT 1. The Veteran's symptoms most closely approximate the criteria for a 20 percent initial rating for degenerative joint disease of the left shoulder. 2. The Veteran's left shoulder disability limits flexion and abduction to, at worst, 80 degrees and 90 degrees, respectively. 3. The Veteran does not exhibit humerus impairments, ankylosis, or clavicle/scapula impairments of her left shoulder joint. 4. The Veteran's symptoms most closely approximate the criteria for a 20 percent initial rating for residuals of a left elbow fracture. 5. The Veteran's left elbow joint is normal, exhibiting a remote, internally fixed, and well-healed fracture of the distal left humerus. 6. The Veteran's left elbow joint symptoms do not include arthritis, deformity, or abnormal range of motion for the Veteran, especially in absence of records from her primary care provider or orthopedic provider. 7. The Veteran's left elbow disability did not manifest as forearm flexion limited to 70 degrees. 8. The Veteran's left elbow is not ankylosed. 9. The Veteran's left elbow disability did not manifest as limitation of pronation that more closely approximates motion lost beyond middle of arc, which is 40 degrees, or with the hand fixed in full pronation. 10. The Veteran's left elbow symptoms do not include flail joint, joint fracture, or impairment of the ulna or radius. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for degenerative joint disease of the left shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003-5201. 2. The criteria for an initial rating in excess of 20 percent for residuals of a left elbow fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5206. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to November 2009. These issues were remanded in November 2015, April 2018, May 2020, March 2021, and September 2021 for further development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which 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. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Left Shoulder Disability The Veteran seeks an initial rating in excess of 20 percent for her left shoulder disability, which is rated under 38 C.F.R. § 4.71a, DCs 5003-5201. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. 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 Veteran's left shoulder disability is evaluated under DCs 5003-5201. DC 5003 provides ratings for degenerative arthritis. Degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. The amendments made to the rating criteria for musculoskeletal system, effective from February 9, 2021, specifies that DC 5003 evaluates arthritis other than post-traumatic, which is evaluated by DC 5010. DC 5201 evaluates limitation of motion of the arm. The criteria provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder and 20 percent for the minor shoulder. Limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. 38 C.F.R. § 4.71a. The February 2021 amendments to the rating criteria specifies that midway between side and shoulder level is flexion and/or abduction limited to 45 degrees and that at shoulder level is flexion and/or abduction limited to 90 degrees. The rating criteria distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. The Veteran is shown to be ambidextrous, therefore, her left shoulder is considered her major extremity. For VA purposes, normal range of shoulder motion is forward elevation (flexion) 0 to 180 degrees; shoulder abduction 0 to 180 degrees; internal rotation 0 to 90 degrees; and external rotation 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38C.F.R. §4.71, Plate I. The Board notes that, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 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. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The Board has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Turning to the evidence of record, at the January 2014 VA examination, the Veteran reported flare-ups on a daily basis in which she is unable to lift her left arm above her head or reach behind her back. Flexion was from 0 to 160 degrees and extension was from 0 to 140 degrees. There was no additional functional loss after repetitive use. The Veteran was not observed after repetitive use over time testing or during a flare-up and the examiner did not provide estimated ranges of motion. No muscle atrophy or ankylosis was noted. No shoulder instability was present. At the September 2015 VA examination, the Veteran reported experiencing worsening of symptoms and a diagnosis of fibromyalgia chronic disorder/bursitis, inflammation. She reported flare-ups of the left shoulder described as very painful, worsened with movement of the arm and shoulder. Flexion and abduction were both 90 degrees. Pain was noted in all planes. Range of motion after repetitive use, repetitive use over time, and flare-ups were 80 degrees for both flexion and abduction. No muscle atrophy or ankylosis was noted. No shoulder instability was present. At the October 2019 VA examination, the Veteran reported experiencing constant left shoulder pain. She did not report flare-ups; however, she described functional impairment as not being able to lift anything heavy with her left arm. Flexion and abduction were both 90 degrees. Pain was noted in all planes. Passive range of motion revealed objective evidence of pain. At the April 2021 VA examination, the Veteran reported experiencing constant burning pain in the left should with occasional numbness. She did not report flare-ups; however, she described functional impairment as not being able to lift anything heavy with her left arm. Flexion and abduction were both 90 degrees. Pain was noted in all planes. Passive range of motion values were the same as active ranges of motion. Pain was noted with active and passive range of motion. There was no additional functional loss after repetitive use testing. She was not being examined immediately after repetitive use over time. Pain caused functional loss. Estimated range of motion after repetitive use over time was 80 degrees for both flexion and abduction. No muscle atrophy or ankylosis was noted. No shoulder instability was present. The Board acknowledges the Veteran's lay reports that pain from the condition causes further functional impairment. Indeed, results from the Veteran's most recent April 2021 VA examination show that her flexions are, at worse, to 80 degrees, and impair her ability to lift anything heavy. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the testing and by the Veteran's statements would not result in symptoms more closely approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major extremity. While the Board concedes that the Veteran's condition results in limitation of range of motion, her limitation of flexion and abduction to 80 degrees is much more closely approximated by the 20 percent diagnostic criteria of limitation to 90 degrees. See also September 2015, October 2019 VA examinations (reflecting flexion and abduction reduced to, at worst, 80 degrees and 90 degrees, respectively). In reaching this decision, the Board has considered whether the Veteran is entitled to separate, or higher, ratings under other diagnostic codes evaluating the shoulder and arm. In this current matter, the medical evidence does not show that the Veteran has any humerus impairments (DC 5202), ankylosis (DC 5200), or clavicle/scapula impairments (DC 5203) of her left shoulder joint. In conclusion, the Board finds that at least a preponderance of the evidence weighs persuasively against an initial rating in excess of 20 percent for the Veteran's left shoulder disability. According, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Left Elbow Disability An April 2010 rating decision granted service connection for status post fracture of the left elbow with residuals and assigned a 20 percent rating effective December 1, 2009. The Veteran contends that she is entitled a higher rating. The Veteran's left elbow residuals with impairment of flexion is rated under 38 C.F.R. §§ 4.71, DC 5206. The Veteran's left elbow limitation of pronation is rated under 38 C.F.R. §§ 4.71, DC 5213. The rating criteria distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. The Veteran is shown to be ambidextrous, therefore, her left elbow is considered her major extremity. The Board has considered and evaluated the Veteran's bilateral elbow disability under DCs 5205 to 5213. The rating criteria for the elbow were unchanged by the revisions that went into effect on February 7, 2021. Under DC 5205, limitation of motion is considered together with the presence of ankylosis. As the evidence discussed below does not establish the presence of ankylosis, DC 5205 is inapplicable. Under DC 5206, a non-compensable disability rating is warranted if flexion is limited to 110 degrees regardless of whether the major or minor extremity is involved; a 10 percent disability rating is warranted if flexion is limited to 100 degrees regardless of whether the major or minor extremity is involved; a 20 percent disability rating is warranted if flexion is limited to 90 degrees regardless of whether the major or minor extremity is involved; a 30 percent disability rating is warranted if flexion is limited to 70 degrees on the major side and 55 degrees on the minor side; a 40 percent disability rating is warranted if flexion is limited to 55 degrees on the major side and 45 degrees on the minor side; and a 50 percent rating is warranted if flexion is limited to 50 degrees on the major side. Under DC 5207, a 10 percent disability rating is warranted if extension is limited to 45 degrees regardless of whether the major or minor extremity is involved; a 10 percent disability rating is warranted if extension is limited to 60 degrees regardless of whether the major or minor extremity is involved; and a 20 percent disability rating is warranted if extension is limited to 75 degrees regardless of whether the major or minor extremity is involved. Under DC 5208, a 20 percent disability rating is warranted if flexion is limited to 100 degrees and extension is also limited to 45 degrees. Under DC 5213, a 10 percent disability rating is warranted if supination is limited to 30 degrees or less regardless of whether the major or minor extremity is involved; a 20 percent disability rating is warranted for limitation of pronation if motion is lost beyond the last quarter of the arc and the hand does not approach full pronation regardless of whether the major or minor extremity is involved; a 20 percent disability rating is warranted for limitation of pronation is motion is lost beyond the middle of the arc of the minor extremity; and a 30 percent disability rating is warranted for limitation of pronation is motion is lost beyond the middle of the arc of the major extremity. The Board has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Turning to the evidence of record, at the September 2015 VA examination, the Veteran reported worsened elbow pain and flare-ups described as chronic pain. Initial testing revealed range of motion to include 0 degrees extension to 110 degrees flexion, supination to 60 degrees, and pronation to 60 degrees. Pain was noted on all planes. There was pain during weight-bearing. Range of motion for repetitive use, repeated use over time, and during flare-ups were 0 degrees extension to 100 degrees flexion, supination to 50 degrees, and pronation to 50 degrees. No ankylosis was found. At the October 2019 VA examination, the Veteran reported constant left elbow pain and swelling. She did not report flare-ups. Initial testing revealed range of motion to include 0 degrees extension to 100 degrees flexion, supination to 50 degrees, and pronation to 50 degrees. Pain was noted on all planes. Subsequent to repetitive use testing, no additional loss of function or range of motion was observed. No ankylosis was found. At the most recent April 2021 VA examination, the Veteran reported flare-ups resulting in non-use of the left elbow until receiving cortisone injections. Initial testing revealed range of motion to include 0 degrees extension to 90 degrees flexion, supination to 85 degrees, and pronation to 70 degrees. Subsequent to repetitive use testing, no additional loss of function or range of motion was observed. Concerning repeated use over time and flare-ups, range of motion was noted to be 80 degrees flexion to 0 degrees extension, supination to 85 degrees, and pronation to 60 degrees. No ankylosis was found. In this regard, the September 2021 Board remand found that clarification was needed. Specifically, while the April 2021 examiner documented the Veteran's report that the Veteran is unable to use her left elbow during periods of flare and noted limitation of motion of 80 degrees flexion during said periods, the examiner failed to explain why the Veteran does not meet the criteria for having favorable ankylosis, as the examination report defines such disability to be between 90 and 70 degrees flexion. DC 5205. As such, and pursuant to the September 2021 Board remand, a November 2021 VA medical opinion was obtained to clarify whether the Veteran has ankylosis of the left elbow, considering her flexion during periods of flare-ups is 80 degrees. The examiner explained that there are no treatment records to support ankylosis of the left elbow. Specifically, a February 2013 x-ray of the left elbow revealed remote, internally fixed, and well healed fracture of the distal left humerus. This indicates that the left elbow joint itself is normal. The examiner further explained that ankylosed joints should have abnormal joint, arthritis, deformity, etc. however, there is no clinical evidence to support ankylosis, or abnormal range of motion for the Veteran, especially in absence of records from her primary care provider or orthopedic provider. The Board acknowledges the Veteran's assertions that she is entitled to higher ratings because her symptoms are worse. The Board recognizes that laypersons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report her symptoms, any opinion regarding whether the Veteran's symptoms have worsened to certain severity requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). As at least a preponderance of the evidence convincingly demonstrates that the Veteran's left elbow did not manifest as forearm flexion limited to 70 degrees, the criteria for an initial rating in excess of 20 percent under DC 5206 for her left elbow limitation of flexion are not satisfied. Under DC 5205, the evidence does not support that the Veteran's left elbow is ankylosed. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). In this regard, the Board notes the November 2021 VA examiner's note that ankylosed joints should have abnormal joint, arthritis, deformity, etc. however, there is no clinical evidence to support ankylosis for this Veteran. As such, the Board finds that a separate compensable rating due to ankylosis is not warranted. Under DC 5207, the Veteran's left elbow disability is consistent with a noncompensable rating as the Veteran was able to extend to 0 degrees. As such, the Board does not find that a separate compensable rating due to limitation of extension is required. Under DC 5213, the records do not indicate that the Veteran's left elbow manifested as limitation of pronation that more closely approximates motion lost beyond middle of arc, which is 40 degrees, or with the hand fixed in full pronation, the criteria for an initial rating in excess of 20 percent under DC 5213. The Board notes that the Regional Office has assigned a 20 percent rating under this diagnostic code, however there is no evidence that she has had functional impairment to such a degree that an even higher rating is required. Therefore, a higher evaluation for the Veteran's left elbow limitation of pronation is not satisfied. No additional higher or alternative ratings under different DCs can be applied in this case for any of the right or left elbow ratings discussed above. There is no medical evidence of flail joint or joint fracture. 38 C.F.R. § 4.71a, DCs 5209, 5210. Finally, there is no medical evidence of impairment of the ulna or radius. 38 C.F.R. § 4.71a, DCs 5211, 5212. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether increased initial ratings for the Veteran's left shoulder degenerative joint disease and left elbow fracture residuals are warranted. Rather, the evidence persuasively weighs against the Veteran's claims. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not applicable as to these claims. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Consequently, the Veteran's claims for entitlement to initial ratings in excess of 20 percent for degenerative joint disease of the left shoulder and residuals of a left elbow fracture are denied. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.