Citation Nr: 22017142 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-03 664 DATE: March 24, 2022 ORDER Entitlement to a 20 percent evaluation, but no higher, for a chronic right shoulder strain with a rotator cuff tear for the period from February 26, 2014, to February 26, 2015, is granted. Entitlement to an evaluation in excess of 20 percent for a chronic right shoulder strain with a rotator cuff tear on or after February 26, 2015 (excluding the temporary total evaluation assigned from November 13, 2018, to February 1, 2019), is denied. REMANDED Entitlement to service connection for dizziness, to include as secondary to service-connected tinnitus, is remanded. Entitlement to an initial evaluation in excess of 10 percent for an unspecified adjustment disorder is remanded. FINDINGS OF FACT 1. For the period from February 26, 2014, to February 26, 2015, the Veteran had limitation of motion to shoulder level. 2. Throughout the appeal period, the Veteran's service-connected right shoulder disability has not been productive of flexion and/or abduction limited to 25 degrees from the side, ankylosis, or other impairment of the humerus. CONCLUSIONS OF LAW 1. For the period from February 26, 2014, to February 26, 2015, the criteria for a 20 percent evaluation, but no higher, for a chronic right shoulder strain with a rotator cuff tear have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Codes 5003-5201. 2. On or after February 26, 2015 (excluding the period from November 13, 2018, to February 1, 2019), the criteria for an evaluation in excess of 20 percent for a chronic right shoulder strain with a rotator cuff tear have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Codes 5003-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2002 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2014 and July 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in an April 2017 rating decision, the RO increased the evaluation for the Veteran's service-connected chronic right shoulder strain to 20 percent effective from March 9, 2017. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6Vet. App.35 (1993). Thus, the issue remained on appeal. In an April 2019 rating decision, the RO assigned a temporary 100 percent evaluation effective from November 13, 2018, based on surgical or other treatment necessitating convalescence. A 20 percent evaluation was assigned effective from February 1, 2019. In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. The Board remanded the case for further development in September 2020. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in a February 2021 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for the Veteran's service-connected right shoulder disability to 20 percent effective from February 26, 2015. The Board also notes that the appeal had originally included the issue of entitlement to service connection for tinnitus. However, in the February 2021 rating decision, the AOJ granted service connection for that disorder. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, the issue is no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Law and Analysis Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he or she filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Even when the background factors listed in 38 C.F.R. §§ 4.40, 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which the motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The Veteran's service-connected right shoulder disability is currently assigned a 10 percent evaluation prior to February 26, 2015, and 20 percent evaluation, thereafter, excluding the period in which he was assigned a temporary total evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5201. During the pendency of this appeal, VA issued revised schedular criteria for rating musculoskeletal disabilities, including some of the diagnostic codes for rating shoulder disabilities under 38 C.F.R. § 4.71a, which became effective February 7, 2021. However, consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to February 7, 2021, neither the RO nor the Board could apply the revised rating schedule. 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 after the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must consider the claims pursuant to the former and revised regulations during this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Prior to February 7, 2021, Diagnostic Code 5010 stated that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under the regulations in effect from February 7, 2021, Diagnostic Code 5003 now only applies to degenerative arthritis, other than posttraumatic. Otherwise, Diagnostic Code 5003 remains the same under the revised regulations. Diagnostic Code 5010 now states that traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 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. 38 C.F.R. § 4.69. In this case, the record clearly indicates that the Veteran is left hand dominant. See e.g., August 2012, April 2015, March 2017, and January 2021 VA examination reports. Therefore, the rating criteria for the minor arm are applicable. Under the version of Diagnostic Code 5201 to the February 7, 2021, Diagnostic Code 5201, a 20 percent evaluation is assigned for limitation of motion of the minor arm at shoulder level or limitation of motion of the minor arm midway between the side and shoulder level. A 30 percent evaluation is warranted with limitation of motion of the minor arm to 25 degrees from the side. Under the amended version of Diagnostic Code 5201, a 20 percent evaluation is assigned for limitation of the minor arm at shoulder level (flexion and/or abduction limited to 90 degrees). A 20 percent evaluation is also contemplated for limitation of motion of the minor arm to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A 30 percent evaluation is warranted for when flexion and/or abduction of the minor arm is limited to 25 degrees from the side. For VA compensation purposes, normal range of motion for the shoulder is 180 degrees of forward flexion, 180 degrees of abduction, and 90 degrees of external and internal rotation. See 38 C.F.R. § 4.71, Plate I. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 20 percent evaluation for his service-connected chronic right shoulder strain with a rotator cuff tear prior effective from February 26, 2014. In a September 2012 rating decision, the AOJ granted service connection for a chronic right shoulder strain and assigned a 10 percent evaluation based on painful motion of the arm pursuant to 38 C.F.R. § 4.59. The Veteran did not appeal that decision. The Veteran later filed an informal claim for an increased evaluation for his service-connected right shoulder disability, which was received on February 26, 2015. As previously noted, the AOJ has granted an increased evaluation of 20 percent effective from that date. However, the AOJ included the issue of entitlement to an increased evaluation prior to February 26, 2015, in the March 2021 supplemental statement of the case (SSOC). If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the AOJ may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). See also Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134- 135 (1992); VAOPGCPREC 12-98, 63 Fed. Reg. 56704 (1998). Thus, three possible dates may be assigned depending on the facts of the case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Gaston, 605 F.3d at 982-8; Harper, 10 Vet. App at 126. Thus, the issue before the Board is whether there was an increase in the Veteran's service-connected right shoulder disability between February 26, 2014, and February 26, 2015. Notably, a February 2014 VA treatment record indicated that the Veteran had limitation of motion past 90 degrees of forward flexion. Another VA treatment record dated that same month also documented that he was experiencing pain with exacerbation when lifting past 90 degrees. Therefore, taking into account the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings of DeLuca, supra, and resolving any reasonable doubt in favor of the Veteran, the Board finds that he is entitled to a 20 percent evaluation under Diagnostic Code 5201 effective from February 26, 2014. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 20 percent at any time during the appeal period. As previously noted, a 20 percent evaluation is the maximum schedular evaluation available for impairment of the clavicle or scapula under Diagnostic Code 5203. Therefore, an increased evaluation cannot be assigned under that diagnostic code. The Veteran has also not been shown to have flexion and/or abduction limited to 25 degrees from his side. As previously noted, VA treatment records dated in February 2014 show that he flexion to 90 degrees, and a November 2014 private treatment record indicates that he had a decrease in abduction of 15 degrees, which suggests that he still retained 165 degrees of abduction given that the normal range of motion is 180 degrees. See 38 C.F.R. § 4.71, Plate I. An April 2015 VA examination also revealed flexion to 115 degrees and abduction to 150 degrees, and a March 2017 VA examiner found the Veteran to have 90 degrees of flexion and 80 degrees of abduction. In addition, a January 2021 VA examination report documented 120 degrees of flexion and 100 degrees of abduction. The Board has also considered whether an increased evaluation is warranted under other relevant diagnostic codes, including codes governing ankylosis of scapulohumeral articulation and other impairment of the humerus. However, the Board finds that the criteria for a higher or separate rating under these provisions are not met. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. In this regard, the April 2015, March 2017, and January 2021 VA examiners specifically stated that the Veteran did not have ankylosis of the shoulder, and the aforementioned range of motion findings do not show or suggest that the shoulder is fixated or immobile. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). The Veteran has also not been shown to have impairment of the humerus. Indeed, the April 2015, March 2017, and January 2021 VA examiners found that he did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. Therefore, the Board finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Codes 5200 and 5202. In addition, the Board notes that the Veteran has been assigned a 20 percent rating for his right shoulder disability, which contemplates painful and limited motion. A 20 percent evaluation is the maximum evaluation available under Diagnostic Codes 5003 and 5010. In addition, an evaluation for arthritis based on x-ray findings cannot be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Thus, a separate or higher evaluation is not warranted under Diagnostic Codes 5003 and 5010. In reaching this determination, the Board acknowledges that the revised rating criteria under Diagnostic Code 5010 provides that post-traumatic arthritis should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. However, as previously discussed, a separate or higher rating is not warranted based on other such impairments. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the findings in DeLuca. However, an increased evaluation for the right shoulder disability is not warranted on the basis of functional loss due to pain or weakness in this case. The Veteran's right shoulder symptoms are supported by pathology consistent with the assigned 20 percent rating and no higher. His complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Indeed, the April 2015 VA examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions without any additional functional loss or range of motion. He also had 4/5 strength, there was no muscle atrophy, and the Veteran did not report having any flare-ups. During the March 2017 VA examination, the Veteran reported that he does have flare-ups involving increased pain if his arm is held at shoulder level for about 5 minutes, lifts his arm over his shoulder, or when leaning down and pulling. The examiner also indicated that pain, weakness, fatigability, or incoordination significantly limit his functional ability with flare-ups and specifically identified lack of endurance as the factor resulting in functional loss. However, he estimated that the Veteran would still retain 90 degrees of flexion and abduction, 30 degrees of external rotation, and 70 degrees of internal rotation during flare-ups. The Veteran was also able to perform repetitive use testing and still maintained 90 degrees of flexion and abduction, 30 degrees of external rotation, and 70 degrees of internal rotation after such testing. It was further noted that his muscle strength was 4/5 and that there was no muscle atrophy. During the January 2021 VA examination, the Veteran reported experiencing flare-ups of his right shoulder pain at least once or twice a week. The examiner also indicated that pain, weakness, fatigability, or incoordination significantly limit his functional ability with flare-ups and specifically identified pain and fatigue as the factors resulting in functional loss. However, he estimated that the Veteran would still maintain 120 degrees of flexion, 100 degrees of abduction, 85 degrees of external rotation, and 80 degrees of internal rotation during a flare-up. The examiner also indicated that the Veteran was able to perform repetitive use testing with at least three repetitions without any additional functional loss or range of motion. His muscle strength was documented as 5/5 without any reduction, and there was no muscle atrophy. Notably, the VA examiners estimated the range of motion findings during a flare-up and after repetitive use, yet they still did not show that the Veteran had flexion and/or abduction limited to 25 degrees from his side. Thus, even when considering repetitive use and flare-ups, the Veteran has still not been shown to warrant an increased evaluation. The Board notes that pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Accordingly, the Board concludes that increased or separate evaluations are not warranted for the Veteran's service-connected right shoulder disability under DeLuca. REASONS FOR REMAND Upon review, the Board finds that additional development is needed prior to adjudication of the issues remaining on appeal. The Veteran has claimed that he has dizziness secondary to his service-connected tinnitus. See July 2019 hearing transcript. However, there is no medical opinion addressing that theory of entitlement. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any dizziness that may be present. The Board also notes that the Veteran was most recently afforded a VA examination in January 2021 in connection with his claim for an increased evaluation for his service-connected unspecified adjustment disorder. He told the examiner that sometimes sees a counselor in the private sector and that he had last been seen for therapy within the past year. However, the claims file does not contain any private medical records pertaining to mental health since 2015. Therefore, the AOJ should attempt to obtain any outstanding medical records. The matters are REMANDED for the following action: 1. The AOJ should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for dizziness and his service-connected unspecified adjustment disorder. A specific request should be made for any counseling records dated since 2015. See January 2021 VA examination report. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate the records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected unspecified adjustment disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including any treatment records and assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's adjustment disorder. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability is viewed in relation to its history", copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any disorder manifested by dizziness that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that any dizziness is causally or etiologically related to the Veteran's military service. The examiner should also provide an opinion as to whether it is at least as likely as not that any dizziness is either caused by or aggravated by the Veteran's service-connected tinnitus. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.