Citation Nr: 22054563 Decision Date: 09/24/22 Archive Date: 09/24/22 DOCKET NO. 11-19 385 DATE: September 24, 2022 ORDER An initial evaluation of 30 percent, but no higher, prior to March 23, 2016, for a right shoulder disability is granted. A rating higher than 30 percent for a right shoulder disability, exclusive of a period of a temporary total evaluation is denied. FINDING OF FACT Throughout the appeal period, the probative evidence of record reflects that the Veteran's right shoulder strain is productive of, at worst, limitation of motion of the arm to 50 degrees flexion and 45 degrees abduction, objective evidence of pain on motion and functional impairment with flare ups and after repetitive use demonstrated by pain on motion and no additional limitation of motion with repetitive use; there are no findings of ankylosis or impairment of the humerus, clavicle, or scapula. . CONCLUSIONS OF LAW 1. Prior to March 23, 2016, the criteria for a disability rating of 30 percent, though no higher, from for right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. 2. The criteria for a rating higher than 30 percent, exclusive of a period of a temporary total evaluation have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DC 5201. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1976 to January 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)'s rating decision issued in July 2012. The Board denied entitlement to an initial rating in excess of 20 percent for a right shoulder disability in July 2019. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (the Court). In August 2020, the Court granted a Joint Partial Motion for Remand (JPMR), regarding the Veteran's entitlement to a rating in excess of 20 percent after March 23, 2016, for a new examination that complies with the requirements of Sharp v. Shulkin, 28 Vet. App. 26, 34-35 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). The parties also agreed that the Board failed to address the severity of his right shoulder disorder absent the ameliorative effects of medication, if possible, under Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Accordingly, the July 2019 Board decision was partially vacated, and the appeal was remanded. Subsequent to the August 2020 JPMR, the Board remanded the issue for further development in January 2021, October 2021, and April 2022. During the pendency of the appeal, a July 2021 rating decision granted a temporary total disability rating from October 17, 2019, to December 1, 2019, based on a right shoulder surgery that occurred on October 17, 2019, and a 20 percent evaluation was assigned from December 1, 2019, for the right shoulder disorder. The assignment of temporary total rating is reflected in the issue characterized above. Right shoulder disability Under DC 5201, a disability rating of 20 percent is assigned when motion is limited to the shoulder level, and a disability rating of 30 percent is assigned when motion of the major upper extremity is limited to midway between the side and shoulder level. Finally, a disability rating of 40 percent is assigned when motion of the major upper extremity is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. Pursuant to 38 C.F.R. § 4.71 Plate I, which illustrates the ranges of motion for various joints, the full range of shoulder abduction and flexion is zero to 180 degrees, with the shoulder level defined as 90 degrees. 38 C.F.R. § 4.71, Plate I. A December 2015 VA physical therapy report shows that the Veteran complained of increased right shoulder pain. Clinical examination showed he had flexion limited to 85 degrees, abduction limited to 90 degrees, external rotation limited to 15 degrees, and internal rotation limited to 45 degrees due to pain. He was unable to reach behind back due to significant pain. A February 2016 VA orthopedic consultation report showed the Veteran complained of right shoulder pain for years for which he had previously received steroid injection. Clinical evaluation was positive for rotator cuff impairment and x-ray film showed degenerative changes. Initial range of motion testing showed flexion limited to 50 degrees and abduction limited to 45 degrees. Based on the limitation of abduction to 45 degrees, internal rotation limited to 45 degrees, and the consideration of the Plate I diagram, the Board finds that a 30 percent rating, but no higher, is warranted prior to March 23, 2016. From March 23, 2016, the evidence of record, including VA treatment records and March 2019, April 2021, and May 2022 VA examinations, demonstrates that the Veteran's right shoulder disability is productive of, at worst, limitation of motion of the arm to 45 degrees flexion; 45 degrees abduction; 35 degrees internal rotation, and 40 degrees external rotation, all with objective evidence of painful motion. These findings warrant the assignment of a 30 percent disability rating. The probative evidence of record throughout the duration of the appeal fails to show limited motion of the right arm, with flexion and/or abduction limited to 25 degrees from the side. The evidence also does not reflect any findings of ankylosis or impairment of the humerus, clavicle, or scapula. Therefore, a higher 40 percent rating is not warranted. The Board also has considered other potentially applicable DCs; however, as there is no evidence of ankylosis, impairment of the humerus on the shoulders, or impairment of the clavicle or scapula, DCs 5200, 5202 and 5203 regarding the shoulders do not apply in this case. Accordingly, the Veteran's right shoulder disability does not support the assignment of a disability rating greater than 30 percent. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hemphill, Athena 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.