Citation Nr: 23007643 Decision Date: 02/07/23 Archive Date: 02/07/23 DOCKET NO. 09-26 247 DATE: February 7, 2023 ORDER Entitlement to an initial rating of 30 percent, but no higher, for right shoulder arthritis is granted. FINDING OF FACT The Veteran's right shoulder arthritis more closely approximates objective pain with range of motion, and range of motion midway between side and shoulder level. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, but no higher, for right shoulder arthritis have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1975 to June 1975 and July 1975 to July 1979, with additional National Guard service. The Veteran appealed an April 1996 rating decision by the Agency of Original Jurisdiction (AOJ), regarding the initial rating for the grant of service connection for a right shoulder condition. A February 2018 rating decision would grant a 20 percent rating and the September 2020 Board of Veterans' Appeals (Board) decision granted an effective date of December 29, 1994. The case has been remanded several times. Most recently, in May 2022, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part, "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the new regulations require specific measurements for higher ratings. As such, the old rating criteria are more advantageous to the Veteran. The Board will not consider the new rating criteria in this decision. The Board also notes that during the course of this appeal, the Veteran's Diagnostic Code for his right shoulder has changed from 5024 to 5201. Nevertheless, the rating criteria for tenosynovitis (tendonitis) is rated on the basis of limitation of motion of the affected part as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5024. As such, even if rated under Diagnostic Code 5024, the criteria used would still be that of Diagnostic Code 5201 for limitation of motion of the shoulder. The Board notes this rating criteria has been the same the entire period on appeal back to 1994. Additionally, the AOJ and Board are allowed to change Diagnostic Codes to better reflect the current disability of the Veteran's service-connected condition. Overall, there was no reduction or severance of the Veteran's rating by changing Diagnostic Codes. Cf. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). The Veteran is right handed. See August 2021 examination report. As such, the rating criteria for the dominant major shoulder is to be considered. The Veteran seeks a 30 percent rating. See August 2020 informal hearing presentation (IHP). Compensation under Diagnostic Code 5201 for the major arm is as follows: 20 percent for limitation of motion at shoulder level; 30 percent for limitation of motion midway between side and shoulder level; and 40 percent for limitation of motion to 25 degrees from side. 38 C.F.R. § 4.71a. 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. The Board finds the Veteran's right shoulder condition more closely approximates the criteria for a 30 percent rating. Medical treatment records throughout the period on appeal note consistent complaint and treatment for pain in the right shoulder. The January 1998 examination report noted issues with carrying groceries, picking up the Veteran's child, doing anything over his head, and that he cannot exercise. The April 2013 examination report noted use of medication and pain with overhead lifting. The August 2021 examination report noted constant pain, daily flare-ups that are sharp, alleviated by medications, and occurs with activity, movement, and lifting, that the Veteran is unable to carry more than 10 pounds or perform repetitive motion, and flexion to 105 degrees during flare-ups. Overall, the Veteran has issues with any work over his head. As such, anything over shoulder level is difficult for the Veteran. Thus, he is entitled to at least a 20 percent rating. However, the Veteran also has issues with activities that are even below shoulder level. Lifting, carrying, and activities such as holding groceries are not done at 90 degrees shoulder level or above. Such activities require lifting to about mid-stomach height. For example, lifting groceries from the floor into the trunk of a car. As such, especially during flare-ups, there is difficulty with shoulder motion about midway from the side to shoulder level. This approximates to be around the 45 degree mark. Furthermore, the Veteran takes medication, it is unclear whether the examinations and the range of motion measurements considered the ameliorative impact of medication. Without medication, the Veteran's shoulder range of motion may be less. Thus, based on this analysis, the Board finds that a disability rating of 30 percent is warranted in this case. However, the Veteran is not entitled to a higher rating. The Veteran is generally still able to use his right shoulder and still do certain physical activities. Range of motion testing does not indicate the Veteran is only able to move his shoulder to only 25 degrees from the side, even during flare-ups. The record does not demonstrate ankylosis objectively in the medical record. The Veteran does not argue that he is unable to move his right arm at all or provide details that would amount to that of ankylosis. The evidence suggests the Veteran is still able to move his right shoulder to an extent and complete tasks, despite its more limited functionality during such flare-ups. Thus, additional compensation for functional loss is not appropriate under Diagnostic Code 5201. Additionally, the Veteran does not demonstrate criteria that would allow for a higher rating under a different Diagnostic Code. The evidence does not demonstrate impairment of the humerus or clavicle or scapula with loss of head, nonunion, fibrous union, dislocation, or malunion as to warrant ratings under Diagnosis Codes 5202 and 5203. Furthermore, Diagnostic Code 5003 would only allow for a 20 percent rating and the evidence does not include x-ray evidence with 2 or more joint groups involved with incapacitating exacerbations. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.