Citation Nr: 23013371 Decision Date: 03/06/23 Archive Date: 03/06/23 DOCKET NO. 17-21 674 DATE: March 6, 2023 ORDER A disability rating in higher than of 20 percent for right shoulder strain is denied. FINDING OF FACT The Veteran's right shoulder motion is not shown to be limited to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). CONCLUSION OF LAW The criteria for a disability rating higher than 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to May 1982. The Board remanded the appeal for further development in November 2019, September 2020, August 2021, and July 2022. The requested development has been completed. The Board notes that the appeal had also originally included a claim for service connection for a skin disability, other than genital herpes. During the pendency of the appeal, a rating decision in January 2023, granted service connection for a tinea cruris (claimed as dermatitis eczema). See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has submitted a notice of disagreement with the effective date or initial rating assigned. Thus, this matter is not in appellate status. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38C.F.R. §4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability 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 diagnosis, and demonstrated symptomatology. Entitlement to a rating higher than 20 percent the right shoulder The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, 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. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations 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. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). 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). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. The Veteran claims that he is entitled to a disability rating higher than 20 percent for his right shoulder disability. The Veteran's service-connected right shoulder disability is currently assigned a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 pertains to limitation of motion of the arm. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under both the old and new regulations Diagnostic Code 5201 differentiates between a veteran's major and minor joints. Under 38 C.F.R. § 4.45 (f), for the purpose of rating disability from arthritis, the shoulder is a major joint. As an initial matter, the Veteran is right-handed. Under the pre-amended criteria, Diagnostic Code 5201 does not explicitly enunciate the criteria for a 10 percent rating; rather, a 20 percent evaluation is warranted with motion of the major or minor arm limited to either at shoulder level or midway between the side and shoulder level. Limitation of motion midway between the side and shoulder level warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and a 30 percent rating is warranted for the minor extremity. As of February 7, 2021, under the amended criteria, the Diagnostic Code 5201 set forth that a 20 percent rating is warranted for with motion of the major or minor arm limited to either shoulder level (flexion and/or abduction limited to 90 degrees). Limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. And limitation of motion of the arm for flexion and/or abduction to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. 38 C.F.R. § 4.71a. The only change in the old to new regulations was to clarify that limitation to shoulder level is for flexion and/or abduction limited to 90 degrees. Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Higher evaluations are warranted based upon ankylosis of the scapulohumeral articulation, in which the scapula and humerus move as one piece (Diagnostic Code 5200), and impairment of the humerus, including fibrous union, nonunion, or loss of head of the humerus (Diagnostic Code 5202). 38 C.F.R. § 4.71a. On VA examination in January 2016, the Veteran reported injuring his right shoulder during service when he slipped and fell on a ship that encountered choppy water. The condition worsened over time becoming increasingly painful. The Veteran took medication to treat his symptoms. He endorsed occasional flare-ups during which he experienced increased soreness and stiffness, which impaired his ability to pick things up. Flexion was to 150 degrees, abduction was to 150 degrees, external rotation was to 70 degrees, and internal rotation was to 80 degrees. There were no objective findings of pain on motion. Strength was 5/5. There was no muscle atrophy. On VA examination in January 2020, the Veteran reported pain and weakness in the right shoulder. He treated his shoulder symptoms with medication. Flare-ups were manifested by increased soreness, weakness and stiffness that impaired his ability to pick up anything or lift heavy objects. Flare-ups of the right shoulder occurred four times a week. The right shoulder flare-ups were moderate to severe and lasted days. Flare-ups were precipitated by lifting and moving wrong at work, and were alleviated by rest and medication. Flexion and abduction of the right shoulder were to 150 degrees, with 70 degrees of internal and external rotation. Pain was noted with each motion. Repetitive motion did not result in additional loss of function or range of motion. Flexion and abduction were further reduced during flare-ups, and with repeated use over time to 140 degrees, with 60 degrees of internal and external rotation. There was no ankylosis, instability, dislocation or labral pathology. Strength was 5/5. There was no muscle atrophy. There was no evidence of pain on passive range of motion and on non-weight bearing. Occupationally, the Veteran's right shoulder disability limited reaching, carrying, pushing, pulling, and lifting moderate objects from mid-chest and above. In contrast, in a July 2020 disability benefits questionnaire (DBQ), a private clinician, Dr. C.B. reported that during flare-ups, the Veteran's right shoulder flexion was reduced to 45 degrees, abduction to 20 degrees, external rotation to 0 degrees and internal rotation 10 degrees. There was localized tenderness and pain on weight bearing. The Veteran reportedly was unable to lift overhead. Strength was 4/5, with no muscle atrophy. On VA examination in November 2020, the examiner noted right rotator cuff tendonitis and acromioclavicular joint osteoarthritis. The Veteran reported shoulder pain with right lateral shoulder soreness of varying severity from mild to severe. The pain was usually felt when he did any lifting or loading. The pain was alleviated by rest, massage and local cold pads. The Veteran endorsed flare-ups that interfered with lifting. Flexion was to 145 degrees, abduction to 120 degrees, external rotation was to 60 degrees, and internal rotation was to 45 degrees. There was no additional loss of motion or function with repetitive movement, on flare-ups or with repeated use over time. There was localized tenderness or pain on palpation of the joint or associated soft tissue, and pain with weight bearing. Strength was 5/5 and there was no muscle atrophy. Imaging studies showed mild AC joint degenerative changes. The Veteran was employed as a railroad engineer. The examiner noted that occupationally, the shoulder disability impacted his ability to perform occupational task that required lifting, reaching, and overhead activities. There was evidence of pain on passive range of motion testing and on non-weight bearing. The examiner acknowledged the findings noted by Dr. C.B. in July 2020, noting that the handwritten DBQ with unrecognizable signature showed poorly collected history and poorly conducted examination. On VA examination in April 2021, the Veteran reported flare-ups twice a week and lasting 12 hours. Flare-ups were usually precipitated by lifting. During a flare-up symptoms became severe and he was unable to lift his right arm above shoulder level. He treated his symptoms with over the counter medication and ice. Flexion was to 135 degrees, abduction to 110 degrees, external rotation was to 55 degrees, and internal rotation was to 90 degrees. During flare-ups and with repeated use over time flexion was further reduced to 90 degrees, abduction to 90 degrees, external rotation was to 25 degrees, and internal rotation was to 90 degrees. There was localized tenderness or pain on palpation of the joint or associated soft tissue, and pain with weight bearing. Strength was 5/5 with there was no muscle atrophy. Imaging studies showed mild AC joint osteoarthritis. The examiner noted that occupationally, the shoulder disability limited liftin and use overhead. There was evidence of pain on weight bearing and with passive range of motion of the right shoulder. The examiner also noted shoulder impingement syndrome On VA examination in October 2022, the Veteran complained of continued pain in the right shoulder rated as 6-9/10 in severity. He was treated at the VA on an as needed basis. There was occasional swelling, stiffness and increased warmth. He denied clicking, popping, grinding, or locking. He had pain with overhead motion. He took meloxicam and acetaminophen for pain. No braces or assistive devices were required. His activities of daily living were not limited by his right shoulder symptoms. The Veteran was able to do his job, but experienced difficulty with doing overhead work such as pulling the brake lever, which was overhead. He endorsed flare ups of increased pain about twice a month lasting up to three days, and which would cause him to miss work. During flare-ups, the right shoulder limited prolonged repetitive overhead use and heavy lifting. Active and passive range of motion testing showed flexion was to 140 degrees, abduction was to 110 degrees, internal rotation was to 90 degrees, and external rotation was to 90 degrees, with pain. There was no additional loss of function or motion with repetitive movement, during flare-ups or with repeated use over time. There was no pain on weight bearing. There was no crepitus. There was tenderness on palpation. There was no muscle atrophy. No rotator cuff condition was present and testing produced negative results. The examiner noted that the Veteran was able to do his job, but had difficulty with prolonged repetitive heavy lifting, carrying and overhead use. The shoulder would not limit light to sedentary work up to chest level. The Board notes that during the period on appeal, the Veteran's treatment records reflect findings consistent with the VA examination reports, nothing in these records show his adverse symptomatology, including his range of motion, to be worse than what was reported by the above VA examiners. The Board notes that the results from the July 2020 DBQ stand in stark contrast to the medical findings recorded on the January 2020 and November 2020 VA examinations, only a few months apart. While some discrepancies are to be expected between examinations, the private DBQ findings were wholly inconsistent with previous and subsequent examinations all three conducted within an 11 month time frame. Moreover, the July 2020 private DBQ is inconsistent with the January 2016, April 2021 and October 2022 VA examination findings, as well as treatment records during the period on appeal. Significantly, the VA examiner in November 2020 reviewed the private DBQ and determined that the report showed poorly collected history and poorly conducted examination. Thus, recorded DBQ findings were likely not an accurate representation of the severity of the Veteran's right shoulder disability. Therefore, the opinion July 2020 DBQ is afforded little, if any, probative value in determining the severity of the Veteran's right shoulder disability. Next, the Board notes that the VA examinations and treatment records did not identify ankylosis of the shoulder and the evidence shows that he retains motion in the right shoulder. Therefore, Diagnostic Code 5200 is not applicable. See Butt's, supra. Similarly, because the record contains no evidence of an impairment of the humerus, and the Veteran has not described symptoms that are suggestive of an impairment of the humerus, Diagnostic Code 5202 is not applicable. Id. Likewise, Diagnostic Code 5203 is not applicable because the record does not document dislocation, nonunion, or malunion of the clavicle and scapula. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Id. Pertaining to limitation of motion of the right shoulder, the range of motion findings detailed above, throughout the appeal, do not show limitation so severe as to meet the criteria for the next higher rating under Diagnostic Code 5201. In this regard, during the course of the claim the Veteran's right shoulder flexion was at worst to 90 degrees and abduction was to 90 degrees with repeated use over time and during flare-ups. As such, the evidence does not reflect limitation of motion to a compensable level for the either shoulder under Diagnostic Code 5201, as the record does not demonstrate limitation of motion of the right shoulder midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees), even when considering Deluca factors. 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App, 26 (2017). Thus, a higher rating for limitation of extension and/or flexion of the right shoulder is not warranted. The Board accepts that the Veteran has functional impairment, pain, and pain on motion. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher rating. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that a disability rating higher than 20 percent for the right shoulder disability is not warranted. See 38 U.S.C. § 5107 (b); see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include the treatment records and examination reports, shows that the Veteran remains employed, though having some problems. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.