Citation Nr: 23041245 Decision Date: 07/27/23 Archive Date: 07/27/23 DOCKET NO. 18-18 845A DATE: July 27, 2023 ORDER Entitlement to a rating of 20 percent, but no higher, prior to July 28, 2014, and of 30 percent, thereafter, but no higher, for service-connected left shoulder condition is granted. FINDINGS OF FACT 1.For the appeal period prior to July 28, 2014, the Veteran's left shoulder condition is more suitably rated under Diagnostic Code 5201, which has a minimum disability rating of 20 percent. 2. From the appeal period starting on July 28, 2014, the Veteran's left shoulder was functionally limited to midway between the side and shoulder level. CONCLUSIONS OF LAW 1. For the appeal period prior to July 28, 2014, the criteria are met for a 20 percent rating, but no higher, for left shoulder condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. For the appeal period from July 28, 2014, the criteria are met for a 30 percent rating, but no higher, for left shoulder condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to September 2004. In September 2021, the Veteran testified before the undersigned. A transcript of the hearing is associated with the claims file. The Board of Veteran's Appeals (Board) previously remanded this matter in February 2022 and November 2022, for which there has been substantial compliance. Increased Rating Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increase, as here, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for a period beginning one year before the claim was filed until VA makes a final decision on the claim. However, separate ratings may be assigned for separate periods of time based on facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a 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). Arthritis due to trauma is rated as degenerative arthritis, based on limitation of motion of the joint involved. See 38 C.F.R. § 4.71a, Codes, 5010, Code 5003. Where there is X-ray evidence of arthritis in a specific major joint or group of minor joints, a (maximum) 10 percent rating may be assigned for limitation of motion of such joint(s) that does not meet the criteria for a compensable rating for limitation of motion of that joint under the specific diagnostic code for the joint. Period prior to July 28, 2014 The Veteran submitted a claim for an increased rating for his left shoulder disability that was received by VA on July 28, 2014. Therefore, with the one-year look-back period, the appeal period begins on July 28, 2013. For the period prior to July 28, 2014, the Veteran's left shoulder disability was evaluated at 10 percent disabling, under Diagnostic Codes 5299-5010. As will be discussed below, from July 28, 2014, the Veteran's left shoulder disability is rated under a different Diagnostic Code, Diagnostic Code 5201. 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 assigned rating. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. When an unlisted disease, injury, or residual condition is encountered requiring rating by analogy, the Diagnostic Code number is constructed by selecting the first two digits from that part of the schedule that most closely identifies the part or system of the body involved, and the last two digits are 99 for all unlisted conditions, in this case 5299 for miscellaneous injury. 38 C.F.R. §§ 4.20, 4.27. The hyphenated diagnostic codes indicate miscellaneous injury (Diagnostic Code 5299) was rated under the criteria for arthritis due to trauma (Diagnostic Code 5010). Under the pre-amended criteria, Diagnostic Code 5010 provides that traumatic arthritis as shown by x-ray findings is to be rated as degenerative arthritis, i.e., under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, (degenerative arthritis, other than post-traumatic) provides that if degenerative arthritis is established by x-rays, then the disability is rated under the appropriate diagnostic code for the specific joint limitation of motion. When the rating of a specific joint is noncompensable under the codes pertaining to limitation of motion, a rating of 10 percent is for application for each major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id., Note 1. In addition, the 20 percent and 10 percent ratings based on x-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024. Id., Note 2. Effective February 7, 2021, Diagnostic Code 5010 was amended to provide that post-traumatic arthritis is to be rated based on limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. The Board notes that there is no evidence related to his left shoulder disability specifically for the appeal period from July 28, 2013, to July 28, 2014. However, looking at the evidence prior to July 28, 2013, as a whole, the Board finds that a rating in excess of 20 percent is warranted based on the change of Diagnostic Code. Given that the Veteran's left shoulder disability is due to limitation of motion and pain, the Board finds that Diagnostic Code 5201 is better suited for his symptomatology since receiving service connection. Diagnostic Code 5201 is the appropriate rating criteria for limitation of shoulder motion and is also more favorable to the Veteran. In a December 2012 VA examination, the Veteran complained of less movement than normal and pain on palpation of the left shoulder acromioclavicular joint. Upon range of motion testing, flexion and abduction ended at 170 degrees. Under the old criteria for Code 5201, the minimum schedular rating is 20 percent, and warranted where there is limitation of arm motion at the shoulder level. The new criteria for Diagnostic Code 5201 remain the same except specifying that limitations of motion of the arm or guarding of movement are with flexion and/or abduction. The Board does not find that the holistic evidence points to limitation of major arm motion at midway between the side and shoulder level, as required for the next higher disability rating under Diagnostic Code 5201. Therefore, the Board finds that a higher rating of 20 percent, but no higher, is warranted under Diagnostic Code 5201 for the appeal period prior to July 28, 2014. Period from July 28, 2014 For the period from July 28, 2014, the Veteran's left shoulder disability was rated under Diagnostic Code 5201. He contends that his left shoulder disability warrants a rating higher than 20 percent. The Board agrees. As noted above, revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or (from their effective date) the new criteria, whichever are more favorable. The Veteran's left shoulder disability is rated under Diagnostic Code 5201, which was revised. However, the record does not reflect that an earlier or higher rating is warranted under either the old or new version of Diagnostic Code 5201. Shoulder disabilities are evaluated under Diagnostic Codes 5200 to 5203. Because the Veteran is left-handed, the left shoulder disability is evaluated as the major joint. Code 5200 (for ankylosis of the scapulohumeral joint) does not apply as the left shoulder is not shown, or alleged, to be ankylosed. Code 5202 (recurrent dislocation of the major shoulder at the scapulohumeral joint) does not apply as the Veteran did not have any issues with his humeral joint. Code 5203 (for impairment of the clavicle or scapula) does not apply as the shoulder disability is not shown, or alleged, to include such impairment. Under the old criteria for Code 5201 (for limitation of shoulder motion), the minimum schedular rating (20 percent) is warranted where there is limitation of arm motion at the shoulder level. Limitation of major arm motion at midway between the side and shoulder level warrants a 30 percent rating. Limitation of major arm motion to 25 degrees from the side warrants a 40 percent rating, which is the maximum schedular rating under this Diagnostic Code for the dominant/major shoulder. Under the new criteria for Codes 5201, the criteria for each rating are unchanged but with added clarification that limitations of motion of the arm or guarding of movement are with flexion and/or abduction. Normal forward flexion of a shoulder is from 0 to 180 degrees, normal abduction of a shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees. 38 C.F.R. § 4.71. Plate I. Turning to the evidence, VA medical records show continuing treatment for chronic shoulder pain and limitation of the left shoulder's range of motion. The Veteran sought physical therapy with a private provider but reported to VA that he did not find it effective to alleviate his left shoulder disability symptoms. He described the shoulder pain as constant, aching, and sharp, aggravated by walking and any other movements. In May 2017, the Veteran underwent an x-ray which revealed degenerative changes of the left shoulder acromioclavicular joint. The Veteran's private physical therapy records demonstrate complaints of constant moderate to severe sharp aching pain, moderate stiffness, and left arm weakness. In July 2017, he reported that he was unable to reach to his back pants pocket or sleep on his left side as it increased the shoulder pain. His physical therapist routinely tested the range of motion throughout the appeal period. Forward flexion ended at 130 degrees, abduction ended at 100 degrees, and extension ended between 30 to 35 degrees. He reported that his left shoulder disability caused functional limitations with his instrumental activities of daily living, self-care such as bathing or showering, sleeping, work, and recreation. The Veteran noted that when he did not attend physical therapy, his shoulder became very stiff and lifting overhead was painful. A private orthopedic surgeon treated the Veteran in May 2018 and noted the painful range of motion and decreased strength in his left shoulder. The Veteran was a body builder and reported that it bothered his biceps and deltoids when he did a bench press. The private physician also found that the Veteran had good range of motion, strength, and no obvious weakness. The Veteran was seen by a VA physician in January 2022. The Veteran complained of bilateral shoulder pain associated with sporadic numbness, tingling of the left arm, dislocation feeling, left upper extremity weakness. The constant sharp, aching, and stabbing shoulder pain was affecting his sleep, with pain worsened by overhead activities. Swelling was noted as he was tender with palpation over the anterior shoulder. Range of motion was measured as the following: forward flexion at 160 degrees, abduction at 130 degrees, external rotation at 30 degrees, and normal internal rotation. The Veteran was afforded a sufficient VA examination in March 2023. Here, he reported pain in the lateral shoulder and across his trapezius. Pain was described as constant, worsening with lifting his arm. He denied any dislocations. Upon range of motion testing, forward flexion ended at 89 degrees, abduction at 88 degrees, internal rotation at 32 degrees and external rotation at 52 degrees. All four range of motion values exhibited pain with active and passive range of motion. The examiner noted that the abnormal range of motion, itself, contributed to functional loss as it affected movements such as working overhead, lifting, twisting, and reaching with his left arm. There was objective evidence of localized tenderness or pain on palpation of the joint over the deltoid and trapezius areas, of moderate severity, directly due to arthritis and the rotator cuff tear. Although the examination was not being examined immediately after repeated use over time or during a flare-up, pain was observed as significantly limiting functional ability during the latter, only. The examiner estimated range of motion values for flexion ending at 80 degrees, abduction ending at 80 degrees, internal rotating ending at 30 degrees, and external rotation ending at 50 degrees. The Veteran was not found to have any additional contributing factors of disability, muscle atrophy, ankylosis, or joint instability. The Veteran confirmed pain during all four rotator cuff tests. Functional impact limited his ability to work overhead, carry and lift heavier objects, and push and pull things. After reading the results of an MRI taken in 2022, the examiner expanded the diagnosis to be: left shoulder degenerative joint disease, acromioclavicular joint arthritis with effect on range of motion, and tenderness on palpation and rotator cuff tear and tendinopathy. Based on the above, the Board finds that a rating of 30 percent, but no higher, is warranted for the left shoulder disability under the old and new criteria under Diagnostic Code 5201 for the appeal period from July 28, 2014. The Board points to the Veteran's consistent reports of functional loss - he was unable to push, pull, rest his arm on high arms of a chair, lift or carry heavy objects, or reach his back pants pocket, without pain. As these functional limitations are essentially "midway" between side and shoulder level, and the Board finds that this evidence of functional loss sufficient to meet the criteria for a higher rating for the left shoulder, which is the major extremity. Accordingly, a 30 percent rating is warranted for the left shoulder, effective from the date of claim, July 28, 2014. The record does not show that his function in the left shoulder has ever been so affected such that it could not abduct or flex beyond 25 degrees from the side, and the Veteran has not so alleged. Therefore, the next higher rating is not warranted for the left shoulder. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.