Citation Nr: 22044233 Decision Date: 08/03/22 Archive Date: 08/03/22 DOCKET NO. 17-34 918 DATE: August 3, 2022 ORDER Entitlement to a disability rating in excess of 30 percent for right shoulder disability is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for residuals right wrist fracture is remanded. FINDING OF FACT The competent evidence of record shows the Veteran's right (nondominant) shoulder strain was manifested by, at worst, limitation of motion to 25 degrees from the side. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for right shoulder disability has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service in the United States Navy from August 1977 to August 1981. These matters come before the Board of Veteran's Appeals (Board) on appeal from October 2013 and October 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In the October 2013 rating decision, the RO denied a higher rating for a right shoulder disability. In the October 2015 rating decision, the RO denied entitlement to a higher rating for a right wrist disability. In February 2019 and December 2021, the Board remanded the claims for further development, to include a VA examination. The Veteran appeared for a VA examination in February 2022. As such the AOJ has substantially complied with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (2011). The matter is ready for a decision. 1. Entitlement to a disability rating in excess of 30 percent for right shoulder disability is denied. The Veteran seeks a higher disability rating for his service-connected right shoulder disability. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating. Disability ratings 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 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. 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). 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). Additionally, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 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. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2018). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). To be adequate, VA examinations must 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. Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. In this case, the Veteran's right arm is considered the major (dominant) upper extremity. See May 2017 VA Examination. Normal (full) range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Here, the Veteran is service connected for a right shoulder strain rated under Diagnostic Code 5201. The Veteran is currently assigned a 30 percent disability rating. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing the new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that 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. VA must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now 38 C.F.R. § 20.904 (d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. The rating criteria for the shoulders were changed in February 2021. Under the old criteria, Diagnostic Code 5201 provided for rating limited motion of the arm based on functional impairment of the major or minor extremity. The schedule provided that limitation of motion of the arm at shoulder level warranted a 20 percent rating for the affected extremity. Limitation from midway between the side and shoulder level warranted a 30 percent rating for a major extremity and 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warranted a 40 percent rating for a major extremity and a 30 percent rating for a minor extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2020). Under the new criteria, Diagnostic Code 5201 assigns (for the major extremity) a 20 percent rating for limitation of arm motion to shoulder level (flexion and/or abduction limited to 90 degrees). A 30 percent rating is warranted for limitation of arm motion to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees); and a maximum 40 percent rating is warranted for limitation of arm motion to 25 degrees from the side. For the minor side, a 20 percent rating is warranted for limitation of arm motion to shoulder level (flexion and/or abduction limited to 90 degrees); a 20 percent rating is also warranted for limitation of arm motion to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees); and a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Federal Circuit Court has held that the plain language of 38 C.F.R. § 4.71a confirms that a Veteran is only entitled to a single disability rating under Code 5201 for each arm that suffers from limited motion at the shoulder joint. The Code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to "limitation of motion of" the arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). Normal flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a , Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. Additional rating criteria can be found under DCs 5200 (ankylosis); 5202 (impairment of the humerus in the arm), and 5203 (clavicular or scapular impairment). The Board acknowledges that consideration must be given to whether a veteran is functionally ankylosed. Cf. Chavis v. McDonough, __ F.3d __, No. 18-2928 (Fed. Cir. April 16, 2021). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Turning to the evidence of record, January 2010 private treatment records indicate mild atrophy of the supraspinatus muscle and mild hypertrophy with osteoarthritic changes. VA treatment records from April 2011 denote right shoulder pain. His shoulder was mobile though irritable. Physical therapy included overhead pulleys. VA treatment records from 2011 also reveal pain in the right shoulder and an August 2011 VA treatment records shows that the Veteran had shoulder flexion of 160 degrees, abduction of 155 degrees, external rotation of 90 degrees and internal rotation of 60 degrees. October and December 2011 private treatment records also denote pain and limitation of motion. In October 2013, the Veteran was afforded a VA examination. The Veteran reported constant pain and no flareups. He reported locking, painful motion, and limitation with lifting, strength, and function. On examination, the Veteran's post-test flexion was limited by pain to 90 degrees and abduction to 70 degrees. There was no additional limitation of motion following repetitive use testing or functional loss. The Veteran had active movement against some resistance and no ankylosis. In a June 2017 private treatment records the Veteran reported right shoulder pain and numbness. In an August 2017 VA neck examination, the Veteran's shoulder strength was normal and there was no ankylosis. In August 2018 private treatment records, the Veteran also reported right arm pain. In March 2019, the Veteran was afforded a VA examination. He reported pain that has worsened over the years and limited range of motion (ROM). He was weaker in the right arm. He was noted to be left hand dominant and did not report flareups. Initial ROM testing revealed flexion to 90 degrees and abduction to 70 degrees. Pain was noted to cause functional loss. There was evidence of pain with weight bearing. There was no additional loss of ROM after three repetitions. The Veteran had active movement against some resistance and no ankylosis or muscle atrophy. Functional limitations include difficulty moving and lifting. In February 2022, the Veteran was afforded a VA examination. He reported that he could move his arm forward but has a hard time putting it out to the side. He was noted to have difficulty with lifting above the shoulder. Active and passive initial ROM testing revealed flexion limited to 100 degrees, abduction to 70 degrees, internal rotation to 90 degrees and external rotation to 50 degrees. Pain was noted on examination that caused functional loss, i.e., difficulty with lifting above shoulder height. There was no additional functional loss after repetitive use. With repeated use over time, the Veteran's flexion to 90 degrees, abduction to 60 degrees, internal rotation to 90 degrees and external rotation to 40 degrees. No flareups were reported. There was no muscle atrophy or ankylosis, scapulohumeral joint or dislocation, non-union, or malunion of the scapula or clavicle. The examiner further noted that while standing, the Veteran's ROM could be around 80 degrees. He was found to have difficulty in occupations requiring heavy lifting. Following a review of the record and the applicable legal criteria, for the reasons below, the Board finds that a higher rating for right shoulder disability is not warranted. Examination reports show that the Veteran is left-handed. As his right shoulder is at issue, the rating criteria for the minor (non-dominant) extremity are applicable. See 38 C.F.R. § 4.69; February 2022 VA Examination. The Board finds that the old criteria are potentially more favorable to the Veteran because they do not include bright-line limitations for range of motion values when considering a higher rating. The Board next observes that the Veteran was already granted the maximum 30 percent rating for limited motion of the minor extremity under the rating schedule. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Thus, a higher rating is not possible on the basis of limitation of motion. See Mitchell, 25 Vet. App. at 43. The Board has also considered whether a higher rating is warranted under any of the DCs for rating shoulder and arm disabilities. Since the grant of service connection, there is no evidence of immobility of the arm or of ankylosis to support a higher rating under Diagnostic Code 5200; no evidence of flail shoulder, false flail joint, or other humeral abnormality to support a higher rating under Diagnostic Code 5202; and no evidence of malunion, nonunion, or dislocation of the humerus, clavicle, or scapula, to support a higher rating under Diagnostic Code 5203. A separate rating also may not be assigned for arthritis. See 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5003, 5201. In reaching the above determination, the Board has considered the Veteran's competent lay assertions, VA treatment records, and additional records, to specifically include his reports of pain, limitation of motion, and difficulty raising his arms over his head. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's shoulder disability. Indeed, the records show that the Veteran's limitation of flexion throughout the appeal period was limited to 80 degrees and abduction to 60 degrees. As the Veteran is seeking a rating in excess of the maximum disability rating available for his right shoulder disability, referral for consideration of an extraschedular rating has been considered. Under Thun v. Peake, 22 Vet. App. 111, 116-17 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for that service-connected disability is inadequate. Second, the Board must determine whether the disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Finally, if the first two factors are met, the case must be referred to the Director, Compensation Service, to determine whether the Veteran's disability picture requires the assignment of an extra-schedular rating. The Board finds that an extraschedular referral is not appropriate. Initially, the Veteran's pain and dislocation of the shoulder joint resulting in limited motion are directly contemplated by the rating schedule. See 38 C.F.R. §§ 4.71a, Diagnostic Code 5201. To the extent that the Veteran reported pain and difficulty lifting his arm and weights, there is no indication that it resulted in functional impairment consistent with the governing norms, including frequent periods of hospitalization, and marked interference with employment, to the extent that a referral for extraschedular consideration is indicated. See 38 C.F.R. § 3.321(b). Based on a review of all of the evidence of record as to the extent of functional loss due to the service-connected right shoulder disability, the Board finds that the preponderance of the evidence is against this claim for a disability rating in excess of 30 percent. Therefore, there is no reasonable doubt to be resolved, and the appeal for this matter must be denied. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for residuals right wrist fracture is remanded. The Veteran seeks a higher rating for his right wrist fracture residuals. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating. The Veteran is diagnosed with impairment of the radius and is currently assigned a disability rating under Diagnostic Code 5212 (impairment of the radius). As noted above, in December 2021 this issue was remanded for additional development. Review of the record reveals that although the Veteran was afforded a VA examination in March 2022, the examiner did not address all of the rating criteria necessary to evaluate the severity of the Veteran's condition. Specifically, he did not provide a response for the section of the examination addressing impairment of the radius which directly pertains to the Diagnostic Code under which the Veteran's wrist disability is evaluated. As such a remand for an adequate VA examination is warranted. Stegall v. West, 11 Vet. App. 268, 271, Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The matters are REMANDED for the following action: 1. After records development is completed, schedule the Veteran for a VA examination to determine the nature and severity of the service-connected residuals of right wrist fracture. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported, including current X-rays of the right wrist. All symptomatology associated with the right wrist should be reported. Regarding the right radius and ulna, the VA examiner should address the presence of nonunion or malunion, the measured loss of bone substance, and whether there is a marked deformity for the entire period on appeal (i.e., since July 2014). In assessing the severity of the right wrist disability, the examiner should test for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of the opposite undamaged joint. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. An estimate of additional degrees of limitation of motion during the flare-ups should be provided. A complete rationale should be provided for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, it is essential that he or she explain why an opinion cannot be provided (i.e., lack of records, limits of medical knowledge, etc.,), or state whether there is additional evidence that could enable an opinion to be provided. 2. After completing the above requested action, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the appellant and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, Associate 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.