Citation Nr: 22017121 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-24 924 DATE: March 24, 2022 ORDER Entitlement to an evaluation of 30 percent, but no higher, for a left shoulder disability from December 29, 2010, to September 10, 2013, and from December 21, 2014, to October 8, 2019, is granted. Entitlement to an evaluation higher than 30 percent for a left shoulder disability from October 9, 2019, is denied. FINDINGS OF FACT 1. From December 29, 2010, to September 10, 2013, and from December 21, 2014, to October 8, 2019, the Veteran's left should disability as likely as not manifested with limitation of motion to 25 degrees from the side. 2. For the entire period on appeal, the Veteran's left shoulder disability has now been assigned the highest possible rating. There are no other applicable diagnostic codes which would allow for a higher rating. CONCLUSIONS OF LAW 1. From December 29, 2010, to September 10, 2013, and from December 21, 2014, to October 8, 2019, the criteria for a 30 percent rating, but no higher, for a left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5201. 2. From October 9, 2019, the criteria for a rating higher than 30 percent for a left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to September 1979. This case comes to the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office. The case was previously remanded in August 2018, February 2021, and November 2021. The Veteran has been assigned a 20 percent rating for his left shoulder disability since September 1979. In December 2010, the Veteran requested an increased rating for his left shoulder disability. In a March 2014 rating decision, because of the Veteran's September 2013 left shoulder arthroscopy and distal clavicle resection surgery, he was assigned a 100 percent temporary total evaluation from September 10, 2013, to December 21, 2014. Because the Veteran has been assigned the maximum possible rating for this period, it will not be discussed in this decision. In a July 2020 rating decision, the Veteran was assigned a 30 percent rating from October 9, 2019. The VA examinations show that the Veteran is right-handed, so his left arm is his "minor" extremity. The Veteran's left shoulder disability is rated under Diagnostic Code 5201, limitation of motion of the arm. Under Diagnostic Code 5201, a 20 percent rating is warranted when there is limitation of motion at shoulder level. A 20 percent rating is also assigned when motion is limited midway between the side and shoulder level. A 30 percent rating is assigned when there is limitation of motion to 25 degrees from the side. 30 percent is the highest rating available for the minor extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The rating criteria for musculoskeletal disorders under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. The revised version of Diagnostic Code 5201 did not alter the ratings assigned, but clarified that "at shoulder level" was for flexion or abduction limited to 90 degrees, and that "midway between the side and shoulder level" was flexion or abduction limited to 45 degrees. Id. Evaluations can also be assigned for traumatic arthritis and ankylosis of the scapulohumeral articulation under Diagnostic Code 5200, for impairment of the humerus under Diagnostic Code 5202, and for impairment of the clavicle or scapula under Diagnostic Code 5203. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. The Veteran was not at any time found to have malunion, fibrous union, nonunion, loss of head, or recurrent dislocation of the humerus; malunion, dislocation, or nonunion of the clavicle or scapula; or ankylosis. As none of these conditions were found to be present, these rating criteria will not be further discussed. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. Diagnostic Code 5003 states that degenerative arthritis 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id; see also 38 C.F.R. § 4.59. As the Veteran has already been assigned more than a 10 percent rating, these criteria will also not be further discussed. The Board has reviewed all of the evidence of record and finds that from December 29, 2010, to September 10, 2013, and from December 21, 2014, to October 8, 2019, a higher 30 percent rating can be assigned. The Veteran was awarded a 30 percent rating, effective October 9, 2019, based on the findings of the October 2019 VA examination. It found that the Veteran had left shoulder impingement syndrome, acromioclavicular joint osteoarthritis, and degenerative arthritis. The Veteran reported that he couldn't lift his arm above his head or behind his back, and that reaching for something under-handed also caused pain. Range of motion testing found flexion and abduction to 90 degrees, external rotation to 40 degrees, and internal rotation to 20 degrees. The examiner wrote that with flare ups, there would be increased loss of range of pain, but she did not provide an estimate in terms of degrees of motion lost. An addendum opinion was then requested in July 2020, and a VA examiner wrote that there would be no further loss of range of motion during a flare up. A retrospective opinion was then obtained by a VA examiner in January 2022. He wrote that from 2010 to 2019, based on a review of the records, the Veteran had chronic left shoulder pain, loss of range of motion and functional impairment which would result in flexion up to 90-130 degrees, abduction to 90 degrees, left internal rotation limited to 20-70 degrees, and left external rotation limited to 10-45 degrees. He wrote that the Veteran would have had difficulty with overhead work, heavy or repetitive lifting, pushing, and pulling. This therefore indicates that the VA examiner found that for the period from 2010 to 2019, the Veteran's left shoulder would have had functional impairment due to pain that could, at least at times, have limited his range of motion just has much as was found at the October 2019 VA examination, if not even more. The Board therefore accepts that this level of impairment likely was present well before the October 2019 VA examination, and it was an error to assign an effective date based on the date of this examination. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Veteran had not had a VA examination prior to this since 2011, so there is clearly a very long period where the level of impairment in the Veteran's arm was not being evaluated. The Veteran had also credibly asserted that during this period, his arm disorder was continually getting much worse. In February 2013, the Veteran wrote that over the last year, the range of motion in his left arm and shoulder had significantly decreased, and that he had to hold his arm close to his body to move it at all, and that the movement was limited to the front of his body. The Board therefore finds that it is as likely as not that for the entire period on appeal, which begins in December 2010, the Veteran's left shoulder disorder has resulted in limitation of motion to 25 degrees from the side, and a 30 percent rating can be assigned. The Board is unable to assign any rating higher than 30 percent. Thirty percent is the maximum allowable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201. As was discussed above, the Board has considered the other diagnostic codes which relate to the left shoulder, but the Veteran has never been found to have malunion, fibrous union, nonunion, loss of head, or recurrent dislocation of the humerus; malunion, dislocation, or nonunion of the clavicle or scapula; or ankylosis. These other diagnostic codes therefore do not apply. The Board has considered the Veteran's reports of having severe and disruptive pain in his left shoulder, but this is not found to warrant, on its own, any higher rating. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (when a claimant is already receiving the maximum rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 apply). The Board also notes that although the October 2019 VA examiner did not provide an estimate of the range of motion lost during flare ups, but an addendum regarding this was provided in July 2020. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). To the extent that the July 2020 addendum opinion may have still been inadequate, this error is harmless, as the Veteran has not been assigned the highest maximum schedular rating based on range of motion. The Board also finds that an effective date earlier than December 29, 2010, is not warranted for the increased 30 percent rating. December 29, 2010, is the date that the Veteran submitted a Supplemental Claim for a higher rating for his left shoulder disability. Except when otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Claims for increased benefits may be awarded at the earliest date in which it is factually ascertainable that an increase in disability had occurred, if the claim is received within 1 year of the date such an increase occurred. Otherwise, the increase is effective the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). In this case, the evidence does show that the Veteran had left shoulder pain and restricted motion in his left shoulder prior to submitting his claim for an increased rating, but this was already the basis for his prior assignment of a 20 percent rating. In June 2010, the Veteran attended an orthopedic surgery consultation for his left shoulder pain. He reported pain overhead and pain that comes and goes. Physical examination found that the shoulder appeared normal, resisted abduction produced pain, and there was good strength. There was resisted internal rotation with some discomfort and pain. This shows continued disability in the left shoulder, but not that it was factually ascertainable that the increase in disability happened during this period. An August 2010 MRI showed left shoulder low grade partial tear. There are no records indicating that at any time during the period from December 29, 2009, to December 28, 2010, the Veteran's left shoulder manifested with limitation of motion to 25 degrees from the side. The Board therefore finds that an effective date prior to December 29, 2010, for the 30 percent rating, is not warranted. In sum, the Board finds that from December 29, 2010, to September 10, 2013, and from December 21, 2014, to October 8, 2019, a higher rating of 30 percent can be assigned. At no time, however, has there been any basis for a rating higher than 30 percent, which is the highest available schedular rating. The evidence is not in approximate balance regarding a higher rating, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F. 4th 776 (2021). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.