Citation Nr: 22045141 Decision Date: 08/09/22 Archive Date: 08/09/22 DOCKET NO. 05-41 442 DATE: August 9, 2022 ORDER Prior to November 17, 2011, an initial compensable rating for a left shoulder disability is denied. From November 17, 2011 to February 11, 2016, a 20 percent rating, but no higher, for a left shoulder disability is granted. Beginning February 12, 2016, a rating higher than 20 percent for a left shoulder disability is denied. Entitlement to a temporary total rating due to a March 28, 2012 left shoulder surgery, requiring a two month period of convalescence, is granted. FINDINGS OF FACT 1. Prior to November 17, 2011, the Veteran's left shoulder disability did not more nearly approximate limitation of motion at the shoulder level, functionally limited to 25 degrees from the side or limitation of motion of the major arm to midway between the side, and there was no evidence of arthritis of the left shoulder. 2. Beginning November 17, 2011, the Veteran's left shoulder disability more nearly approximated limitation of motion of the arm at shoulder level, but did not result in range of motion functionally limited to 25 degrees from the side or limitation of motion of the major arm to midway between the side. 3. It is at least likely as not that the Veteran's March 2012 left shoulder surgery required two months of convalescence. CONCLUSIONS OF LAW 1. Prior to November 17, 2011, the criteria for an initial compensable rating for a left shoulder disability are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 5010-5021. 2. From November 17, 2011 to February 11, 2016, the criteria for a 20 percent rating, but not higher, for a left shoulder disability are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 5010-5021. 3. Beginning February 12, 2016, the criteria for a rating higher than 20 percent for a left shoulder disability are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 5010-5021. 4. The criteria for entitlement to a temporary total rating due to a March 28, 2012 left shoulder surgery requiring a two month period of convalescence are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for a left shoulder disability and assigned an initial noncompensable rating. In August 2008, the Board remanded the claim for further development. In the interim, the Veteran file a claim for a temporary total, which the RO denied in an August 2014 rating decision, finding that the Veteran did not submit the necessary evidence within a year of the surgery. A January 2016 rating decision increased the disability rating to 10 percent, effective November 17, 2011. To the extent that less than the maximum available benefit for a schedular rating was awarded and the increased rating was not awarded for the entire period on appeal, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). In December 2017, the Board remanded the claim for a new VA examination. In an April 2020 rating decision, the RO increased the left shoulder disability to 20 percent, effective June 25, 2019. To the extent that less than the maximum available benefit for a schedular rating was awarded and the increased rating was not awarded for the entire period on appeal, the claim remains before the Board. See Fenderson, supra; AB, supra. In February 2021, as pertinent here, the Board remanded the claim to determine the current severity of the service-connected left shoulder disability. In February 2022, the Board remanded the appeal for the issuance of a supplemental statement of the case. In an April 2022 rating decision, the RO assigned the 20 percent disability rating effective February 12, 2016. To the extent that less than the maximum available benefit for a schedular rating was awarded and the increased rating was not awarded for the entire period on appeal, the claim remains before the Board. See Fenderson, supra; AB, supra. The case has since returned to the Board for further appellate review. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran does not assert, and the record does not reflect, that he has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities at any point during the period on appeal. Therefore, the Board finds that Rice is inapplicable, and a TDIU request is not inferred. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). INCREASED RATING APPLICABLE LAWS AND REGULATIONS Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court of Appeals for Veterans Claims (Court) clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 42 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Left Shoulder Rating Criteria Effective February 7, 2021, VA revised the portion of the Rating Schedule that addresses the Musculoskeletal System and Muscle Injuries. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. 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, and the criteria that is more favorable to the Veteran will be applied. The Veteran's left shoulder strain is rated under DC 5010-5201. Prior to February 7, 2021, DC 5010, applicable to arthritis due to trauma, provided that the disability should be rated pursuant to the criteria under DC 5003, applicable to arthritis, degenerative." See 38 C.F.R. § 4.71a, DC 5010 (2020). DC 5003 provides that when limitation of motion is noncompensable under the appropriate code or codes, a rating of 10 percent may be applied to each major joint or group of minor joints affected by limitation of motion. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is no limitation of motion, a 10 percent rating will be assigned where there is x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent rating will be assigned where there is such involvement along with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003 (2020). For the purpose of rating disability from arthritis, the shoulder is considered a major joint. 38 C.F.R. § 4.45(f). Changes to DC 5010, effective February 7, 2021, require: "Rate as limitation of motion, dislocation, or other specified instability under the affected joint." See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries. Prior to February 7, 2021, 38 C.F.R. § 4.71a, Diagnostic Code 5201 provided that a 20 percent rating is warranted for limitation of motion of the major arm and minor arm at shoulder level. A 20 percent rating is assigned for limitation of motion of the minor arm to midway between the side and shoulder level. A 30 percent rating is assigned for limitation of motion of the major arm to midway between the side and shoulder level. A 30 percent rating is assigned for limitation of motion of the minor arm to 25 degrees from the side. A 40 percent rating is assigned for limitation of motion of the major arm to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201 (2020). Effective February 7, 2021, DC 5201 remains largely unchanged as it continues to provide for ratings based on limitation of motion of the arm; however, the revised criteria include range of motion findings to assist the rater in determining the appropriate disability evaluation. A 20 percent rating is warranted for limitation of motion of the major arm and minor arm at shoulder level, which is now defined as flexion and/or abduction limited to 90 degrees. A 20 percent evaluation is assigned for limitation of motion of the minor arm to midway between the side and shoulder level, which is now defined as flexion and/or abduction limited to 45 degrees. A 30 percent rating is assigned for limitation of motion of the major arm to midway between the side and shoulder level, which is now defined as flexion and/or abduction limited to 45 degrees. A 30 percent rating is assigned for limitation of motion of the minor arm to 25 degrees from the side. A 40 percent rating is assigned for limitation of motion of the major arm 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. The Veteran is right-handed; thus, the minor extremity criteria are applicable to the Veteran's left shoulder. Left Shoulder Rating Analysis Prior to November 17, 2011 For the reasons expressed below, the Board finds that prior to November 17, 2011, an initial compensable rating is not warranted. In October 2004, the Veteran underwent a VA general medical examination, at which the examiner rendered a diagnosis of right shoulder tendonitis. This appears to be a typographical error, as the Veteran only claimed a left shoulder disability, which was granted subsequent to this examination. The examiner noted that range of motion of both shoulders was normal with no evidence of tenderness. In the February 2005 notice of disagreement, the Veteran complained of left shoulder pain. He reiterated the same in the November 2005 substantive appeal. According to February 2005 VA treatment records, the left shoulder was within normal limits. During this initial rating period on appeal, all available range of motion testing showed full range of motion of the left shoulder. While the Veteran's complained of pain and is competent to report feeling pain, there is no evidence of arthritis of the left shoulder. In fact, only in 2011, was there "initial" evidence of arthritis. Furthermore, it is unclear from the record whether the reported shoulder pain occurs with motion, as is required for a minimum compensable rating under 38 C.F.R. § 4.59. Since range of motion was normal with no evidence of arthritis, a compensable rating is not warranted, including under 38 C.F.R. § 4.59. From November 17, 2011, Forward Resolving any reasonable doubt in the Veteran's favor, beginning November 17, 2011, the Board finds that a 20 percent rating is warranted. In November 2011, the Veteran underwent an orthopedic examination, at which time the Veteran reported that he had left shoulder pain at elevation and abduction over 90 degrees and working above the head level was not possible. The level of pain varied from 7 to 8 while taking Motrin. He had partial dysesthesia in the left arm and could not sleep on left side because night rest was disturbed. Physical examination of the left shoulder showed subacromial palpatory tenderness of 3 out of 10 in intensity and throughout the supraspinatus tendon. There was medium palpatory tenderness in the tuberculum majus (2/10). There was no tenderness throughout the long and short biceps tendon and no pressure pain in the infraspinatus or subscapularis tendon. Impingement testing of the left shoulder was positive without evidence of instability. Rotator cuff, AC joint, and long biceps tendon testing were negative. Neck and apron handles were completely feasible on the left side, with some hesitation. Range of motion of the left shoulder was described as follows: active anteversion capability was to 180, bilaterally, active abduction to 145, passive external rotation 60-0-60. There was left-sided pain with intensity of 3 out of 10 in projection over the subacromial space with abduction from 110 degrees. After three repetitions, there was no pain intensity, early tiredness, or loss of function. The examiner rendered a diagnosis of left shoulder chronic impingement syndrome with tendinosis of the supraspinatus tendon and subacromial narrowness and initial osteoarthritis. Private treatment records dated in March 2012 indicated that the Veteran underwent a left shoulder surgery. Under anesthesia, left shoulder range of motion revealed external rotation to 40 degrees, abduction to 60 degrees, and internal rotation to 90 degrees with no instability. In an April 2013 statement in support of claim, the Veteran requested a temporary 100 percent rating for a left shoulder surgery requiring convalescence. According to June 2016 VA treatment records, the Veteran complained of left shoulder pain. The pain was worse with abduction. Range of motion was abnormal; the Veteran could not actively abduct the shoulder but was able to do so with assistance. There was no swelling, tenderness, or instability. In June 2019, the Veteran underwent a VA shoulder and arm conditions examination, at which time the examiner rendered diagnoses of left shoulder strain and rotator cuff tear. The Veteran reported daily moderate left shoulder pain treated with Motrin. The Veteran reported no flare-ups or functional loss/impairment due to the left shoulder disability. Upon physical examination, range of motion of the left shoulder revealed flexion to 130 degrees, abduction to 100 degrees, and external and internal rotation to 80 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on examination. There was no evidence of pain with weight bearing, no objective evidence of localized tenderness or pain on palpation, and no objective evidence of crepitus. There was no additional functional loss or range of motion loss after repetitive use testing. Muscle strength testing was normal with no evidence of muscle reduction or atrophy. There was no ankylosis. The examiner noted that pain, weakness, fatigability and incoordination did not significantly limit functional ability with repeated use over a period of time. According to VA treatment records dated in 2019 and 2020, the Veteran continued to complain of left shoulder pain. In April 2022, the Veteran underwent an additional shoulder and arm conditions examination, at which time the examiner rendered diagnoses of degenerative arthritis since 2011. The Veteran reported left shoulder pain with above horizontal movement. He was unable to lift his arm to a horizontal position and had pain with any movement. He did not report any flare-ups. Functional loss/impairment was described as inability to lift or carry with the left arm. Upon physical examination, range of motion of the left shoulder revealed flexion to 75 degrees, abduction to 75 degrees, and internal/external rotation to 80 degrees. Range of motion itself contributed to functional loss due to limited lifting and carrying and no above horizontal position work. Passive range of motion was the same as active range of motion. Pain was noted on examination and caused functional loss. There was no objective evidence of crepitus or localized tenderness/pain on palpation. There was no additional loss of function/range of motion after repetitive use testing with three repetitions. There was no muscle reduction or atrophy and no ankylosis. On review, the Board finds that since November 17, 2011 the Veteran's left shoulder has more nearly approximated limitation of motion of the arm at shoulder level. While the Board acknowledges that some examinations showed some improvement, the Veteran's competent lay assertions suggest that he was having a hard time with range of motion above shoulder level during this entire rating period. Nevertheless, a rating higher than 20 percent is not warranted at any point during the pendency of the claim, as there is no lay or medical evidence of limitation of motion of the major arm to midway between the side/shoulder level limitation of motion of the minor arm to 25 degrees from the side. The Board further notes that the Veteran is in receipt of a separate rating for left upper extremity carpal tunnel syndrome, which contemplates for his symptoms of numbness of the left arm. ENTITLEMENT TO A TEMPORARY 100 PERCENT RATING On review of the evidence, the Board finds that a 100 percent rating is warranted for a left shoulder surgery requiring a period of convalescence. Under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the day of the month following hospital discharge or outpatient release when treatment of a service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. In this regard, the Board notes that convalescence is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland's Illustrated Medical Dictionary, 374 (28th ed. 1994)). Recovery has been defined as "the act of regaining or returning toward a normal or healthy state." Id. (citing Webster's Medical Desk Dictionary, 606 (1986)). Here, the surgery took place on March 28, 2012, and the treatment records showed that the Veteran was instructed to not use the shoulder for a period of six weeks. As discussed above, under 38 C.F.R. § 4.30, a temporary total evaluation for convalescence can be granted in periods of one, two, or three months. Accordingly, the Board finds that a convalescence period of two months for the Veteran's surgery of the left shoulder is warranted. [Continued on Next Page] Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.