Citation Nr: 22018907 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 13-23 894 DATE: March 30, 2022 ORDER An increased rating in excess of 20 percent for bursitis of the right shoulder is denied. FINDING OF FACT The Veteran's right shoulder disability was manifested by a disability level most nearly approximating limitation of motion midway between the side and shoulder level (flexion and/or abduction limited to 45°) of the major extremity. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for bursitis of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1968 to October 1990. This matter is on appeal from a September 2010 rating decision. The Board remanded this matter for further development in September 2015, August 2018, July 2020, March 2021, and December 2021. An increased rating in excess of 20 percent for bursitis of the right shoulder The Veteran is seeking an increased rating for his right shoulder disability. He filed a claim for increase in April 2010. This disability has been assigned a 20 percent rating throughout the entire appeal period. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's disability has been assigned a disability rating under DC 4.71a of 38 C.F.R. § 5201. The applicable rating schedule is set forth as follows: THE SHOULDER AND ARM Rating Major Minor 5200 Scapulohumeral articulation, ankylosis of: NOTE: The scapula and humerus move as one piece. Unfavorable, abduction limited to 25° from side 50 40 Intermediate between favorable and unfavorable 40 30 Favorable, abduction to 60°, can reach mouth and head 30 20 5201 Arm, limitation of motion of: To 25° from side 40 30 Midway between side and shoulder level 30 20 At shoulder level 20 20 5202 Humerus, other impairment of: Loss of head of (flail shoulder) 80 70 Nonunion of (false flail joint) 60 50 Fibrous union of 50 40 Recurrent dislocation of at scapulohumeral joint. With frequent episodes and guarding of all arm movements 30 20 With infrequent episodes, and guarding of movement only at shoulder level 20 20 Malunion of: Marked deformity 30 20 Moderate deformity 20 20 5203 Clavicle or scapula, impairment of: Dislocation of 20 20 Nonunion of: With loose movement 20 20 Without loose movement 10 10 Malunion of 10 10 Or rate on impairment of function of contiguous joint. Normal range of motion of the shoulders is forward flexion from zero to 180 degrees; abduction from zero to 180 degrees; external rotation to 90 degrees; and internal rotation to 90 degrees. 38 C.F.R. § 4.71 , Plate I. With forward elevation (flexion) and abduction, range of motion for the arm is from the side of the body (zero degrees) to above the head (180 degrees) with the mid-point being 90 degrees where the arm is held straight out from the shoulder. With external rotation, range of motion is from the shoulder level (zero degrees) to 90 degrees above the head. Id. With internal rotation, range of motion for the arm is from the shoulder level (zero degrees) to in-line with the side of the torso (90 degrees). The applicable rating schedule was amended during the appeal period, effective from February 7, 2021. The revised criteria were not intended to have a retroactive effect. Hence, the claim will be adjudicated under the former criteria for the entire period, but under the amended criteria for the period only beginning on the effective date of the revised provisions. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The amended rating schedule pertaining to the shoulder were as follows: 5201 Arm, limitation of motion of: Flexion and/or abduction limited to 25° from side 40 30 Midway between side and shoulder level (flexion and/or abduction limited to 45°) 30 20 At shoulder level (flexion and/or abduction limited to 90°) 20 20 5202 Humerus, other impairment of: Loss of head of (flail shoulder) 80 70 Nonunion of (false flail joint) 60 50 Fibrous union of 50 40 Recurrent dislocation of at scapulohumeral joint. With frequent episodes and guarding of all arm movements 30 20 With infrequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90°) 20 20 Malunion of: Marked deformity 30 20 Moderate deformity 20 20 When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which 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."). B. Discussion The evidence of record, most recently a January 2022 VA examination, shows that the Veteran is right-handed. Thus, the service-connected right arm is considered the major side. 38 C.F.R. § 4.69. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss. At a June 2020 VA examination, he had weakness, stiffness, heat, giving way, lack of endurance, and pain, including pain with overhead work and lifting. During VA treatment in June 2015, he complained of being often awakened from sleep by the pain. At a May 2016 VA examination, he complained of incoordination, stiffness, daily right shoulder pain with movement of the arm above shoulder level associated with stiffness and guarding, which limited his lifting capacity to 20 pounds and limited throwing. During VA treatment in March 2019, he reported pain when he extended his arm all the way out to the side or with throwing motions. At an October 2019 VA examination, he complained of a dull pain increasing to a sharp pain resulting in inability to throw a ball without intense pain and complete inability to reach overhead. At a December 2020 VA examination, he complained of right arm weakness and pain causing functional impairments with driving, sleeping, lifting anything over 5 pounds, playing with his grandkids, sports, bowling, and horseshoes. At a June 2021 VA examination, he reported daily pain, which increased with use. He stated that during a typical day his pain ranged in severity from 3 to 8 (with overhead right arm movements) out of 10. The pain subsided to a dull, less intense pain when he completed any movement overhead with the right shoulder. He could not sleep on the right shoulder; had trouble lifting anything overhead; and had limited endurance due to pain when holding the right arm overhead. Finally, he had increased pain and difficulty in putting on a shirt or jacket. Most recently, at an August 2021 VA examination, he reported constant global right shoulder pain that was worse with "any movement at all," even minimal movement below shoulder level. Lifting the arm over shoulder level was especially painful as was any twisting motion, such as with driving. He usually could not lie on the right shoulder because it was painful, and at times the right shoulder would catch and was very painful with any attempt at further movement. He controlled his symptoms by avoiding exacerbating activities. In his daily life, he reported mostly driving with his left hand, and he did not sleep on the right side, plus he "just can't hold [his] right arm up very long." Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly 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 or minor extremity. He had flexion and abduction to 170 degrees at the June 2010 VA examination; flexion and abduction to 40 degrees at a February 2015 private (non-VA) consultation; flexion and abduction to 60 degrees at a March 2015 private consultation; flexion to 155 degrees and abduction to 160 degrees at an April 2015 private consultation; motion to 50 degrees (undefined as to either flexion or abduction) at an October 2015 private consultation; flexion and abduction to 80 degrees at the May 2016 VA examination; flexion and abduction to 110 degrees at an October 2019 VA examination; flexion to 160 degrees and abduction to 75 degrees at the December 2020 VA examination; flexion to 140 degrees and abduction to 95 degrees at the June 2021 VA examination; flexion to 115 degrees and abduction to 100 degrees at the August 2021 VA examination; and flexion to 35 degrees and abduction to 65 degrees at the January 2022 VA examination. In listing these degrees of limitation motion, the Board has cited the greatest degree of limited motion given, such as during flare-ups or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017); Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Even when doing so, his limitation of motion did not more nearly approximate motion limited to 25 degrees from the side. To the extent the Board previously remanded this claim to obtain findings consistent with Correia, a further review of the past VA examinations shows that the contain the necessary findings. The most recent examination in January 2022 is also entirely compliant with Correia. The VA examinations tested the joint for pain on both active and passive motion, in weight-bearing and nonweight-bearing. See 38 C.F.R. § 4.59. Hence, there was substantial compliance with the prior Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). The Board observes that the amended diagnostic criteria effective February 7, 2021, did not materially change from the pre-February 2021 diagnostic criteria. Rather, the amendment simply codified the ranges of limited motion that had previously been derivable from 38 C.F.R. § 4.71a, Plate I. Hence, the Veteran's limitations of motion both before and from February 7, 2021, would not warrant a higher rating under the pre-amended or post-amended criteria. The Board has considered whether any other DCs related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.71a. (Continued on the next page) The VA examinations, VA medical records, and private medical records consistently show that there was no impairment of the humerus or impairment of the clavicle or scapula. The January 2019 VA examination shows that there was ankylosis in abduction between favorable and unfavorable (intermediate ankylosis) at 50 degrees of abduction. This was greater than intermediate ankylosis between favorable abduction at 60 degrees and unfavorable abduction limited to 25 degrees from the side, which, the Board observes would equal 42.5 degrees of abduction. Hence, a higher rating is not warranted on the basis of ankylosis under DC 5200. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 20 percent. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.