Citation Nr: 22014173 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-22 439 DATE: March 11, 2022 ORDER Entitlement to a 30 percent rating, but no higher, effective December 30, 2013, to October 13, 2021, for rotator cuff tear, acromioclavicular joint ostearthritis, shoulder impingement syndrome of the right shoulder (nondominant hand) is granted. Entitlement to a separate 20 percent for glenohumeral joint dislocation of the right shoulder (nondominant hand), effective October 13, 2021, is granted. REMANDED Entitlement to a rating in excess of 40 percent for rotator cuff tear, acromioclavicular joint ostearthritis, shoulder impingement syndrome of the right shoulder, from October 13, 2021, is remanded. FINDINGS OF FACT 1. From the date of claim, December 30, 2013, to October 13, 2021, the Veteran's service-connected (nondominant hand) has been manifested by complaints of pain and limited range of motion that more nearly approximates limitation midway to 25 degrees from side; there is no medical evidence of ankylosis. 2. From October 13, 2021, the Veteran's glenohumeral joint dislocation of the right shoulder (nondominant hand) has been manifested by recurrent dislocation with infrequent episodes and guarding of movement, but without frequent episodes and guarding. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation of 30 percent, but no higher, is warranted for rotator cuff tear, acromioclavicular joint ostearthritis, shoulder impingement syndrome of the right shoulder (nondominant hand), effective December 30, 2013, to October 13, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 3.321, 4.7, 4.71(a), Diagnostic Code 5201 (effective prior to February 7, 2021). 2. The criteria for entitlement to a separate disability evaluation of 20 percent, but no higher, is warranted for glenohumeral joint dislocation of the right shoulder (nondominant hand), effective October 13, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 3.321, 4.7, 4.71(a), Diagnostic Code 5202 (effective prior to February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to February 1969. The Board previously remanded this matter in October 2018 and September 2021. With respect to the issues decided herein, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in December 2021, the Veteran submitted an application for a total disability rating based on individual unemployability (TDIU) indicating that he was unable to work due to his service-connected disabilities, including his right shoulder disability. The Board recognizes that a TDIU claim is a potential part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). However, in this case, during the course of the appeal, the agency of original jurisdiction (AOJ) has already denied the TDIU claim in a February 2022 rating decision. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006). Thus, the Board finds that this matter is not currently on appeal. Moreover, the Veteran still has the opportunity to appeal the February 2022 decision. Further, it appears that the AOJ is also developing a new claim for TDIU submitted in March 2022. Additional relevant evidence, including a January 2022 VA examination, was associated with the record that had not been considered by the AOJ in conjunction with this appeal. In February 2022 correspondence, the Veteran's representative waived AOJ consideration of this evidence and, thus, the Board may proceed with the issuance of this decision. Entitlement to an increased rating for right shoulder disability The Veteran asserts that an increased rating is warranted due to the functional impairment caused by his right shoulder disability. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.§ 1155; 38 C.F.R. Part 4. 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As with the issues decided herein, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods of time, based on the facts are for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). For purposes of this analysis, the Board notes that under the provisions of 38 C.F.R. § 4.71(a) Diagnostic Code 5201 for evaluation of limitation of motion of the arm, a 20 percent rating is warranted when motion is limited at shoulder level for either arm and midway between side and shoulder level for minor arm; a 30 percent rating is warranted when motion is limited midway between side and shoulder level for major arm and to 25 degrees from side for minor arm; and a 40 percent rating is warranted when motion is limited to 25 degrees from side for major arm. Normal forward flexion and abduction of the shoulder are from 0 degrees to 180 degrees with 90 degrees being at shoulder level. 38 C.F.R. § 4.71, Plate I. The medical evidence of record reflects that the Veteran is left hand dominant. Thus, the Veteran's right shoulder is his "minor" arm. 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 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. Id. As of February 7, 2021, under the amended criteria, Diagnostic Code 5201 provides that a minimum 20 percent evaluation is warranted for either arm when its motion is limited to the shoulder level. A 30 percent evaluation is warranted for the major arm and a 20 percent rating for the minor arm when its motion is limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A 30 percent evaluation is warranted for the minor arm when flexion and/or abduction is limited to 25 degrees from the side. A 40 percent evaluation, the maximum available, is warranted for the major arm when flexion and/or abduction is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Further, a disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movement of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. 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; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 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. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Review of the October 2021 VA examination report, which is discussed further below, showed that joint testing for pain on both active and passive motion as well as non-weight bearing with range of motion measurements of the opposite undamaged joint was done in compliance with Correia. By way of background, the Veteran's right shoulder disability, characterized as right shoulder dislocation, has been rated as 20 percent disabling from January 2009, with the exception of a temporary total rating from November 2, 2011, to February 1, 2012. As the medical evidence of record clearly documents that the Veteran is left-handed, the Veteran's shoulder historically has been rated as the minor arm under 38 C.F.R. § 4.71a, Diagnostic Code 5201 for limitation of motion of the arm. However, in an October 2021 rating decision, the AOJ changed the Diagnostic Code for the Veteran's 20 percent rating to Diagnostic Code 5202 for impairment of the humerus. The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, the AOJ did not adequately explain why it changed the Diagnostic Code to 5202 for the Veteran's ongoing 20 percent rating. In this regard, the first medical evidence documenting residuals of recurring dislocation with infrequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90°), which is the criteria for a 20 percent rating under Diagnostic Code 5202, was the October 2021 VA examination. The medical evidence prior to this examination clearly shows that the Veteran's primary symptom was pain with limitation of motion of the arm and, thus, the appropriate Diagnostic Code for this period was 5201. Importantly, the May 2015 and May 2021 VA examiners found no evidence of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint, which again is the criteria under Diagnostic Code 5202. Thus, in light of the above, the Boards finds that the Veteran's right shoulder disability is more appropriately rated under Diagnostic Code 5201 as it was prior to the October 2021 rating decision. The Board now turns to whether a rating in excess of 20 percent under Diagnostic Code 5201 is warranted at any point during the course of the appeal. Based on the evidence of record and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 30 percent rating is warranted under Diagnostic Code 5201 for pain with limitation of motion throughout the course of the appeal. Initially, the Board observes that it previously found that the May 2015 and May 2021 VA examinations were inadequate because they did not adequately address in degrees the Veteran's functional loss during flare ups under Sharp v. Shulkin, 29 Vet. App. 26 (2017). Significantly, the October 2021 VA examiner found that the Veteran's right shoulder abduction during flare-ups was limited to 20 degrees, which is the criteria for a 30 percent rating for the minor arm under Diagnostic code 5201. Flexion was also limited to 35 degrees. The examiner observed that the Veteran experienced pain, fatigability, weakness and lack of endurance. As the prior VA examinations were found to be inadequate with respect to the degree of functional impairment during flare-ups, the Board finds that the October 2021 VA examination is the most probative evidence on this point. The Board notes that the Veteran was afforded a subsequent VA examination in January 2022, but, again, the examiner did not address the Veteran's functional impairment during flare-ups. Accordingly, the Board finds that a higher level of compensation is warranted because as noted above, there is persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination to such a degree to warrant the next highest rating for limited motion of the minor arm. See Mitchell, cited above. In sum, when considering the totality of the functional impairment caused by his service-connected right shoulder disability as described by the lay and medical evidence of record, the Board finds that the Veteran's functional impairment more nearly approximates limitation of the minor arm to 25 degrees from side to warrant a 30 percent rating under Diagnostic Code 5201. Moreover, the Board finds that the severity of the Veteran's right shoulder disability has been consistent throughout the course of the appeal. In this regard, the Veteran has consistently reported pain, weakness, and limitation of motion. The Board recognizes that prior VA examinations in May 2015 and May 2021 document less restrictive range of motion findings. However, again, these examinations are inadequate as they do not comply with Sharp. Significantly, the examinations do document painful motion as well as functional impairment. Accordingly, a 30 percent rating is warranted from the date of the Veteran's current claim for an increased rating, December 30, 2013. The Board notes that the evidence within one year prior to the date of claim does not show that the Veteran met the criteria for a higher rating. In this regard, a May 2013 VA examination showed that the most restrictive range of motion was to 80 degrees and the Veteran only reported trouble raising his arm over his head. VA clinical do not address the severity of the Veteran's shoulder during this period. Thus, it was not factually ascertainable that the criteria for a higher rating were met within one year prior to the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). Nevertheless, as a 30 percent rating is the maximum rating allowable under Diagnostic Code 5201 for the minor arm, a higher rating is not available under this code. Moreover, since the Veteran has been granted the maximum rating possible under limitation of motion for the arm, a further analysis under DeLuca, supra, would not result in a higher rating. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The Board now turns to whether a higher rating is warranted under other Diagnostic Codes pertaining to the shoulder and arm. In the instant case, Diagnostic Code 5200 is not applicable because there has been no competent medical evidence showing that the Veteran has ankylosis of his right shoulder. All of the VA examinations clearly document no findings of ankylosis. Further, the Veteran cannot receive a higher disability rating under Diagnostic Code 5203 for impairment of the clavicle or scapula because it provides for a maximum schedular rating of 20 percent rating. 38 C.F.R. § 4.71, Diagnostic Codes 5200, 5203. However, with respect to Diagnostic Code 5202 for impairment of the humerus, the Board finds that a separate 20 percent rating is warranted for recurrent dislocation. In this regard, the October 13, 2021, VA examination documented recurrent dislocation with infrequent episodes, and guarding of movement only at shoulder level, which is the criteria for a 20 percent rating under this code. However, a rating in excess of 20 percent is not warranted as the VA examination does not show frequent episodes of dislocation and guarding of all movements. Moreover, as discussed above, the prior May 2015 and May 2021 VA examinations found no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint to warrant a separate rating under Diagnostic Code 5202. Further, VA clinical records during this period are silent with respect to recurrent dislocations. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his right shoulder disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Moreover, the Board has contemplated the Veteran's statements concerning the severity of his symptoms when assigning the 30 percent rating for limitation of motion from the date of claim, as well as the separate 20 percent rating for recurrent dislocations from October 13, 2021. The Board has considered whether staged ratings are appropriate for the Veteran's right shoulder disability; however, as discussed above, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007. In conclusion, the Board finds that 30 percent rating, but no higher, for right shoulder disability under Diagnostic Code 5201 is warranted, effective December 30, 2013, to October 13, 2021. Further, a separate 20 percent rating under Diagnostic Code 5202 is warranted, effective October 13, 2021. However, the evidence persuasively weighs against the Veteran's claim for a higher rating. In denying a higher rating, 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. REASONS FOR REMAND Entitlement to a rating in excess of 40 percent for rotator cuff tear, acromioclavicular joint ostearthritis, shoulder impingement syndrome of the right shoulder associated with glenohumeral joint dislocation, from October 13, 2021, is remanded. The AOJ also awarded a 40 percent rating, from October 13, 2021, the date of the VA examination, under Diagnostic Code 5201. However, it appears that the 40 percent rating assigned was under the criteria for the major arm. Again, as noted above, all of the medical evidence, including the VA examinations, clearly show that the right arm is the nondominant arm for the Veteran and, thus, the maximum rating allowable under this code is 30 percent. Thus, further explanation concerning the award of a 40 percent rating under Diagnostic Code 5201, from October 13, 2021, would be helpful to the Board. The matters are REMANDED for the following action: Readjudicate the issue of entitlement to a rating in excess of 40 percent for rotator cuff tear, acromioclavicular joint ostearthritis, shoulder impingement syndrome of the right shoulder associated with glenohumeral joint dislocation, from October 13, 2021, to include an explanation concerning the award of a 40 percent rating under Diagnostic Code 5201 for the major arm. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.