Citation Nr: 22040102 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 14-99 828A DATE: July 13, 2022 ORDER Entitlement to an increased rating of 30 percent for residuals status post arthroscopic bicep tenodesis to include humerus impairment from November 10, 2011 to July 19, 2020, is granted, subject to controlling regulations governing the award of monetary awards. FINDING OF FACT Throughout the appeal period, the Veteran's right shoulder symptoms more nearly approximated limitation of motion midway between the side and shoulder level. CONCLUSION OF LAW The criteria for an increased rating of 30 percent for residuals status post arthroscopic bicep tenodesis to include humerus impairment from November 10, 2011 to July 19, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5201-5202. REASONS AND BASES FOR FINDIN AND CONCLUSION The Veteran served on active duty from December 1991 to July 1997. This case initially came to the Board of Veterans Appeals (Board) on appeal from April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 20 percent rating for status post right shoulder reconstruction (major), with osteoarthritis of the glenohumeral joint. The Veteran disagreed with the RO's determination, and a Statement of the Case (SOC) was issued in December 2014 addressing the matter. The Veteran timely appealed. In August 2017, the Veteran testified at a travel Board hearing before one of the undersigned Veterans Law Judges (VLJs). A transcript of the hearing has been associated with the claims file. In September 2017, the RO assigned a 100 percent rating for the right shoulder disability from November 1, 2016, to March 1, 2017 for surgery necessitating convalescence. The 100 percent rating is the maximum rating available; as such, this period of time is not on appeal. In May 2018, the Board remanded the matter for further evidentiary development. While in remand status, in December 2019, the RO assigned a 100 percent rating for the right shoulder disability from November 14, 2019 to February 29, 2020 for surgery necessitating convalescence. The 100 percent rating is the maximum rating available; as such, this period of time is not on appeal. In a November 2020 rating decision, the RO recharacterized the claim for status post right shoulder reconstruction (major), with osteoarthritis of the glenohumeral joint to residuals status post arthroscopic bicep tenodesis to include humerus impairment (claimed as right humerus secondary to status post right shoulder reconstruction), and increased the rating to 30 percent effective July 20, 2020, creating a staged rating as indicated on the title page. Although a higher rating has been granted for residuals status post arthroscopic bicep tenodesis to include humerus impairment, the issue remains in appellate status, as the maximum available benefit has not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2022, the Veteran testified at a travel Board hearing before another of the undersigned VLJs. A transcript of the hearing has been associated with the claims file. In legacy cases, VLJs who conduct hearings must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, when an appellant has had appellate hearings before two VLJs on one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is ready for appellate review. In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Court interpreted 38 C.F.R. § 20.707 to require that an appellant must also be provided the opportunity for a hearing before all three VLJs involved in a panel decision. See also Frantzis v. McDonough, __ Vet. App. __, No. 20-5236, 2022 U.S. App. Vet. Claims LEXIS 935 (discussing the interpretation of 38 U.S.C. § 7107(c) in Arneson and the removal of this language as part of the AMA). In this case, two VLJs have taken testimony regarding the Veteran's claim for right shoulder disability in August 2017 and March 2022. Accordingly, a third VLJ has been assigned to participate in a panel decision in this case. However, during the March 2022 Board hearing, the Veteran's representative indicated that the benefit sought in this case is a 30 percent rating back to the date of the claim, and this would satisfy the appeal. Specifically, he stated, "A few years after that date, they increased his rating to 30 percent . . . And that is what he was seeking back then . . . a 30 percent rating in 2012 [sic] would satisfy the appeal on this." See March 2022 Hearing Transcript p. 3. In light of this request, there is no prejudice in not affording the Veteran an opportunity for a hearing before a third VLJ, as the Board is granting the benefit sought in full, specifically a 30 percent rating from the November 10, 2011 date of claim. 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). Right Shoulder The Veteran seeks a 30 percent rating for right shoulder disability throughout the appeal period. In this regard, the issue before could be characterized as entitlement to a 30 percent rating from November 10, 2011, for right shoulder disability or entitlement to an earlier effective date for the 30 percent rating. The grant of any compensation benefit necessarily includes implementation of an award and the selection of an effective date, since no award is granted in a legal vacuum. The Board has characterized the issue in the Order as granting a 30 percent rating from the date of claim, as the Veteran was in receipt of a staged rating and essentially sought a 30 percent rating for the first stage. The Veteran's right shoulder disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5201-5202. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5201 pertains to limitation of arm motion, and Diagnostic Code 5202 pertains to other impairment of the humerus. 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). However, the criteria were not changed in a manner that affects the analysis in this case. 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 major arm for his right shoulder. Under Diagnostic Code 5201, limitation of arm motion in the major extremity is as follows: limitation of motion to 25 degrees from the side warrants a rating of 40 percent; limitation to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a rating of 30 percent; and limitation to shoulder level (flexion and/or abduction limited to 90 degrees) warrants a rating of 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5201. 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. Under Diagnostic Code 5202, other impairment of the humerus in the major extremity is as follows: loss of head (flail shoulder) (80 percent); nonunion (false flail joint) (60 percent); fibrous union (50 percent); recurrent dislocation at scapulohumeral joint with frequent episodes and guarding of all arm movements (30 percent); recurrent dislocation at scapulohumeral with infrequent episodes and guarding of movement only at shoulder level (20 percent); malunion with marked deformity (30 percent); and malunion with moderate deformity (20 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5202. In December 2011, the Veteran was afforded a VA examination. He reported right shoulder flareups of burning pain, swelling, and grinding. The Veteran's treatment plan included Ibuprofen and Flexeril medication. Range of motion testing revealed flexion and abduction to 100 degrees with pain. Repetitive use testing did not result in additional function loss. The Veteran was not examined during a flareup. There was a history of recurrent dislocation of the scapulohumeral joint with infrequent episodes. The Veteran's private treatment records dated from February 2013 to September 2018 shows complaints and treatment for right shoulder pain. In June 2015, he exhibited normal range of motion. In May 2016 range of motion testing revealed flexion and abduction to 145 degrees. In March 2017 and July 2018, range of motion testing revealed flexion and abduction to 170 degrees. At his August 2017 Board hearing, the Veteran testified that he experienced right shoulder pain, weakness, and flareups. He noted difficulty lifting, grasping, doing chores, and playing sports with his son. The Veteran further noted that his treatment plan included cortisone shots and prescribed medications. An October 2019 VA examination report shows the Veteran reported right shoulder pain (sharp and throbbing) with popping and grinding. His treatment plan included Percocet, Tizanidine, and Embeda medication. The Veteran denied flareups. He was unable to lift anything overhead or throw a ball. Range of motion testing revealed flexion to 180 degrees, and abduction to 120 degrees. The Veteran was unable to perform repetitive use testing due to fear of pain. There was no history of recurrent dislocation of the scapulohumeral joint. An October 2020 VA examination report shows the Veteran reported right shoulder pain had progressively gotten worst due to right humerus new secondary post-arthroscopic bicep tenodesis. His current treatment plan included physical therapy twice a week, steroid injections every six months, Percocet, Pregabalin, and TENS unit. The Veteran reported flareups of right shoulder joint dislocation in 2019, with the duration of one day. He indicated right shoulder throbbing pain causes difficulty in holding objects, carry heavy objects, lifting the right arm over his right shoulder, and signing documents as a result of right humerus new secondary post-arthroscopic bicep tenodesis. Range of motion testing revealed flexion and abduction to 170 degrees with pain. Repetitive use testing revealed flexion and abduction limited to 165 degrees. The Veteran was examined during a flareup, and flexion and abduction was to 165 degrees. There was a history of recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. A November 2020 VA examination report shows the Veteran reported that his condition has progressively gotten worse, with symptoms of right shoulder sharp, achy, and throbbing pain, as well as tingling and numbness. His treatment plan included a shoulder stabilizer, Percocet, Morphine, Pregabalin, Trazadone, diclofenac gel, and TENS. The Veteran reported daily pain and denied flareups. He noted that his condition interferes with work, and daily physical activities. Range of motion testing revealed flexion to 60 degrees, and abduction to 40 degrees. He experienced interference with lifting and reaching. Repetitive use testing did not result in additional function loss. There was a history of recurrent dislocation of the scapulohumeral joint with guarding of all arm movement. At his March 2022 Board hearing, the Veteran testified that he is unable do heavy lifting of computers, bending, reaching, and experiences numbness due to right shoulder disability. He reported flareups daily, and that sometimes his prescribed medication does not help. The Veteran's treatment plan included Percocet, extended-release morphine, Tizanidine muscle relaxer, and Lyrica. During the Board hearing, the Veteran and his representative indicated that he would be satisfied with the 30 percent rating from November 10, 2011, date of claim. Resolving reasonable doubt in favor of the Veteran, for the entirety of the period on appeal, an increased rating of 30 percent for right shoulder disability 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, private treatment records, in addition to the December 2011, October 2019, October 2020, and November 2020 VA examination reports have shown that the Veteran has consistently reported severe pain and limited range of motion in right shoulder. He has reported increased and burning pain, swelling, grinding, popping, and numbness of right shoulder. The examinations have further shown that the Veteran experiences significant flare-ups to the extent that it limits the ability to lift anything overhead, hold objects, carry heavy objects, lifting the right arm over his right shoulder, throwing a ball, and signing documents. At the August 2017 and March 2022 Board hearings, the Veteran reiterated his experience right 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 right 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). Moreover, there is a lack of evidence showing that the Veteran's right shoulder symptoms suddenly became worse on the date of the October 2020 VA examination. In this regard, an "effective date should not be assigned mechanically based on the date of" an examination. Rather, all of the facts should be examined to determine" the effective date of an increased rating. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). See also Calhoun v. Wilkie, No. 18-4896, 2019 U.S. App. Vet. Claims LEXIS 1282 (July 24, 2019 (mem dec) (Kramer, J.) ("The problem with the Board's analysis is that it lacks any statement of reasons or bases explaining why [the Veteran's] schizophrenia was no worse than was contemplated by a 30% rating on March 7, 2015, yet was consistent with a 70% rating the following day"); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Given the additional motion loss during periods of activity or flare-ups, a 30 percent rating for the Veteran's right shoulder disability is warranted from the November 10, 2011 date of claim. As noted above, during the Board hearing, the Veteran's representative indicated that he would be satisfied with the 30 percent rating from date of claim, erroneously indicating 2012 rather than 2011 as the year of the claim. See March 2022 Hearing Transcript p. 3. As the Board has thus granted the benefit sought in full, further discussion is unnecessary. Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014) (acknowledging that "the appellant generally controls the scope of appellate review"); AB v. Brown, 6 Vet. App. at 39 (acknowledging that a claimant may in some circumstances "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law"). Cf. Hamilton v. Brown, 4 Vet. App. 528, 544 (1993) ("where, as here, the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals H. SEESEL Veterans Law Judge Board of Veterans' Appeals TBD To Be Determined 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.