Citation Nr: 22018348 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 11-30 969 DATE: March 29, 2022 ORDER Entitlement to an increased rating of 30 percent for residuals, left shoulder separation is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT Throughout the appeal period, the Veteran's left shoulder symptoms, which is the Veteran's minor joint, more nearly approximated pain and range of motion of flexion and/or abduction limited to 25 degrees from the side when considering flare-ups. CONCLUSION OF LAW The criteria for an increased rating of 30 percent for residuals, left shoulder separation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1990 to February 1994. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 20 percent rating for residuals, left shoulder separation. In June 2019, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In October 2019 and October 2021, the Board remanded the case for further evidentiary development, specifically, to provide VA examination. For the reasons indicated in the discussion below, the examination ordered by the Board was conducted and is adequate to decide the claim; therefore, the agency of original jurisdiction has substantially complied with the Board's October 2021 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Higher Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § § 4.10. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § § 4.3. 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. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was already in effect, the present level of 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). 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). 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 these elements. 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 it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § §§ 4.10, 4.40, 4.45. VA must analyze the 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 the VA to regard as seriously disabled any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Left Shoulder The Veteran's left shoulder disability is evaluated at 20 percent under Diagnostic Code (DC) 5201 based on limitation of motion of the arm. The rating criteria for evaluating disabilities of the shoulder, distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. The Veteran is right-handed; therefore, the Board will apply the ratings and criteria for the minor arm for his left shoulder. 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). 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. 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. Prior to the regulatory change, DC 5201, for the minor arm, a 20 percent rating is warranted for limitation of arm motion to shoulder level; 20 percent for limitation midway between the side and shoulder level, and; a maximum 30 percent rating for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Code 5201. As of February 7, 2021, under the amended criteria, DC 5201, for the minor arm, a 20 percent rating for motion of the major extremity limited to shoulder level (flexion and/or abduction limited to 90 degrees); a 20 percent rating for motion limited to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees); and a 30 percent rating for flexion and/or abduction limited to 25 degrees from the side. Normal ranges of shoulder motion are flexion to 180 degrees; abduction to 180 degrees; and external and internal rotation to 90 degrees each. 38 C.F.R. § 4.71, Plate I. Shoulder level is depicted as 90 degrees. In February 2010 and February 2011 private treatment records, the Veteran exhibited full range of motion of left shoulder. In March 2012, the Veteran was afforded a VA examination. He reported left shoulder flareups of pain and fatigue. Range of motion testing revealed flexion to 160 degrees, with pain at 125 degrees; and abduction to 145 degrees with pain at 125 degrees. Repetitive use testing did not result in additional function loss. The Veteran was not examined during a flareup. In June 2013 and July 2013 private treatment records, the Veteran exhibited full range of motion of left shoulder. He reported pain predominantly when he is driving and holding his arm up on the steering wheel. His treatment plan included over-the-counter nonsteroidal anti-inflammatory drugs, diclofenac, and tramadol. A December 2015 VA examination report shows the Veteran reported left shoulder flareups of persistent pain and fatigue triggered by repetitive tasks that requires him to reach overhead. Left shoulder flexion was normal at 180 degrees, and abduction was at 170 degrees. Repetitive use testing did not result in additional function loss. The Veteran was not examined during a flareup. A December 2017 VA examination report shows the Veteran reported left shoulder flareups resulting in pain, decreased range of motion, and inability to move his shoulder. Left shoulder flexion was at 105 degrees, and abduction was at 80 degrees. Repetitive use testing revealed flexion limited to 85 degrees, and abduction remained at 80 degrees. The Veteran was not examined during a flareup. The Veteran's private treatment records shows that in July 2018, left shoulder flexion was at 155 degrees, and abduction at 165 degrees with pain. In August 2018, left shoulder was at 155 degrees, and abduction was at 165. In October 2018, the Veteran exhibited popping on left shoulder abduction towards end range during passive range of motion. Left shoulder flexion and abduction was at 165 degrees. At his June 2019 Board hearing, the Veteran testified experiencing left shoulder numbness, tingling, crackling, popping, and the inability to bring shoulder all the way down without pain. He noted flareups of pain with limited range of motion. He noted using lidocaine patches to dull the pain, in addition to Motrin and Advil. A December 2019 VA examination report shows the Veteran reported flareups of left shoulder that increased pain by 30 percent, decreased his range of motion by 20 percent, with the duration of one to nine days. The Veteran noted that he gets cortisone injections in left shoulder, most recently one month ago. He further noted that he is unable to work in shoulder overhead position. Left shoulder flexion and abduction was at 160 degrees. Repetitive use testing did not result in additional function loss. The Veteran was not examined during a flareup. A November 2021 VA examination report shows the Veteran reported left shoulder flareups weekly with duration of a few hours that are precipitated by activity. Flareups are alleviated by rest, tramadol, and duexis. The Veteran noted difficulty driving and lifting anything overhead. Left shoulder flexion and abduction was at 130. Repetitive use testing did not result in additional function loss. The examiner indicated that during a flareup, left shoulder flexion and abduction was limited to 100 degrees. The Veteran was not examined during a flareup. Resolving reasonable doubt in favor of the Veteran, for the entirety of the period on appeal, an increased rating of 30 percent for left shoulder is warranted. The Board must consider additional functional loss due to symptoms such as pain, repetitive motion, and flare-ups. 38 C.F.R. §§ 4.40, 4.45. In this case, March 2012, December 2015, December 2017, December 2019, and November 2021 VA examination reports show that the Veteran has consistently reported severe pain and limited range of motion in left shoulder. He has reported fatigue, weakness and increase of pain after minimal use of left shoulder. The examinations have further shown that the Veteran experiences significant flare-ups to the extent that it limits the ability to work in shoulder overhead position. At the June 2019 Board hearing, the Veteran reiterated his experience of left shoulder flareups with pain and limited motion, and the use of medication to relieve symptoms. The Veteran has provided competent and credible reports of pain during use that limit movement of his left shoulder at both VA and private examinations, as well as, at his hearing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). The evidence of record further indicates the Veteran's continuous use of medication to alleviate symptoms. Any amelioration from medication cannot be considered in determining the appropriate rating in this case. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). The November 2021 VA examiner indicated that during a flareup, left shoulder flexion and abduction was limited to 100 degrees. However, considering the Veteran has not been examined during a flareup throughout the course of the appeal, it cannot be stated with certainty as to the precise limitation of motion experienced during flare-up periods, the record is reasonably clear that the Veteran experiences additional motion loss during flare-ups, described as limited movement. Given the additional motion loss during periods of activity or flare-ups, a 30 percent rating for left shoulder based on estimated motion loss during flare-up periods is warranted. Further, with regard to the VA examinations, to the extent that any of the range of motion testing was not conducted in accordance with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016), any such noncompliance is harmless error. Here, such findings could not result in higher ratings for the Veteran's left shoulder disability as the Veteran is being awarded the maximum schedular rating for limitation of motion for that disability for the entirety of the period on appeal. In addition, there is no evidence of ankylosis of scapulohumeral articulation and the VA examination reports indicate there was no ankylosis. Thus, a higher rating is not warranted under DC 5200. There was also no evidence of impairment of the humerus or clavicle or scapula, warranting higher or separate ratings under DCs 5202 or 5203. For the foregoing reasons, after affording the Veteran the benefit of the doubt, a 30 percent rating for left shoulder disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Additionally, in the January 2022 brief, the Veteran's representative contended that inquiry as to whether referral for extraschedular evaluation was warranted was incomplete, as the Veteran's physical demands as a sheet metal foreman was not considered by VA or the November 2021 VA examiner. The Veteran's job requires him to be able to lift an average of 50 pounds while connecting an item to another, and sometimes he has to use his head as a prop when his left arm and shoulder become too tired or sore. The representative also noted the Veteran's job requires prolonged periods of lifting, reaching and working on scaffolding and overhead structures. Here, the November 2021 VA examiner indicated that the Veteran's left shoulder disability impacted his ability to work, as he has difficulty driving and lifting anything overhead. The Board has taken account of the symptoms indicated in 38 C.F.R. § 4.45 regarding functional loss in granting the 30 percent rating. Pain and the other symptoms noted above are contemplated in the rating criteria for all musculoskeletal disabilities and there are no complications that warrant separate consideration as compensable disabilities secondary to the service-connected left shoulder disability under 38 C.F.R. § 3.155(d)(2). As the criteria contemplate these symptoms, the Board need not address whether the left shoulder disability caused marked interference with employment. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.