Citation Nr: 24005154 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 17-67 509 DATE: February 1, 2024 ORDER For the entire appellate period, an increased disability rating of 30 percent, but no higher, is granted for the Veteran's left shoulder disability. FINDING OF FACT For the entire period on appeal, the Veteran's left shoulder disability most closely approximates limitation of arm motion to 25 degrees from the side. CONCLUSION OF LAW The criteria for an evaluation of 30 percent, but no higher, for the Veteran's left shoulder disability are met for the entire appellate period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5201. ? REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from December 1990 to September 1996 and in the U.S. Army from June 2004 to January 2006, from June 2007 to July 2008, from January 2009 to January 2012, and from April 2012 to April 2013, including service in the Southwest Asia theatre of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2022, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record. In a March 2023 decision, the Board, in pertinent part, reopened the Veteran's claims for service connection for a respiratory disability manifested by chronic coughing and a disorder of the left upper extremity manifested by left hand numbness and remanded the reopened claims, as well as the Veteran's claim for an increased evaluation for his service-connected left shoulder disorder. Subsequently, in a September 2023 rating decision, the agency of original jurisdiction (AOJ) granted service connection for a respiratory disability (characterized as "chronic obstructive pulmonary disease (COPD), emphysema and right lung nodules) and combined the evaluation of this condition with the already service-connected obstructive sleep apnea, continuing the assigned 50 percent evaluation. See September 2023 Rating Decision. The AOJ also granted service connection for a disorder of the left upper extremity manifested by left hand numbness (characterized as "left upper extremity radiculopathy") and assigned a 20 percent evaluation, effective from April 24, 2023, the "date medical evidence shows a diagnosis" of this condition. See id. Accordingly, to the extent that service connection has been established for these conditions, this represents a full grant of the benefit sought on appeal as concerning those issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (reflecting that, where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection); Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Therefore, these matters are not in appellate status and are not before the Board. In this regard, the Board notes that the AOJ included the issue of "[e]ntitlement to service connection for left upper extremity radiculopathy as secondary to the service connected disability of left shoulder tendonitis with degenerative changes, status postsurgical repair, prior to April 24, 2023," in the September 2023 supplemental statement of the case (SSOC). However, as discussed, the September 2023 rating decision represented a full grant of the Veteran's claim for service connection for a disorder of the left upper extremity manifested by left hand numbness. As such, the issue of entitlement to service connection for a left upper extremity neurologic pathology prior to April 24, 2023, was included in the September 2023 SSOC in error and is not currently before the Board. If the Veteran wishes to challenge the rating or effective date assigned the service-connected left upper extremity radiculopathy in the September 2023 rating decision, the Board encourages him to submit the appropriate form within one year of notification of the September 2023 rating decision, so on or before September 22, 2024. INCREASED RATINGS VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. 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. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. In increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such claims, VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Hart, 21 Vet. App. at 509. Additionally, when evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 1. For the entire appellate period, an increased disability rating of 30 percent, but no higher, is granted for the Veteran's left shoulder disability. Throughout the relevant period, the Veteran's service-connected left shoulder tendonitis with degenerative changes, status post surgical repair, is in receipt of a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201-5010, pertaining to arthritis and rated on the provisions regarding limitation of motion of the arm at shoulder level. See 38 C.F.R. § 4.27 (reflecting that 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 additional code is shown after the hyphen). Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2020). Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Effective February 7, 2021, VA amended Diagnostic Code 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. See 85 Fed. Reg. 76,453, 76,464 (Nov. 30, 2020), revised, 85 Fed. Reg. 85,523 (Dec. 29, 2020), revised, 85 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201). The revised version of DC 5201 clarifies that limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2021). Based on the evidence of record, the Board finds that the Veteran's left shoulder limitation of motion and additional symptomatology and functional limitations most closely approximate the criteria for a 30 percent rating under Diagnostic Code 5201 for the entire appellate period. See 38 C.F.R. § 4.71a. See also Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). VA examinations document that the Veteran is right hand dominant, and therefore the rating criteria for the minor extremity will apply for the Veteran's left shoulder disability. In this regard, the Veteran's medical records, including his VA examination reports, document the presence of left shoulder arthritis (degenerative joint disease) throughout the relevant appellate period. See, e.g., August 2016 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ) (reflecting a diagnosis of degenerative arthritis of the left shoulder); April 2023 VA Shoulder and Arm Conditions DBQ (describing the Veteran's left shoulder post-traumatic arthritis). Moreover, the most probative medical evidence of record during the appellate period, namely the August 2016 and April 2023 VA examination reports, documents painful, limited motion of the left (non-dominant) shoulder. See id. Specifically, these examination reports reflect that the Veteran's left shoulder pathology is productive of near-constant "daily pain" and frequent flare-ups of severe pain and markedly limited motion occurring multiple times per day. See August 2016 VA Shoulder and Arm Conditions DBQ (reflecting left shoulder flexion limited by pain and weakness to 45 degrees of flexion and 70 degrees of abduction with additional limitation following repetitive use over time and during flares); April 2023 VA Shoulder and Arm Conditions DBQ. Additionally, although the Veteran was able to move his left arm past the midpoint between the arm and shoulder level, the August 2016 and April 2023 VA examiners found that the Veteran's service-connected left shoulder pathology has been productive of symptomatology and functional limitations beyond the limitation of flexion and extension contemplated in the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5201 (reflecting that, for the non-dominant arm, a 20 percent evaluation is warranted for limitation of motion at the shoulder level, a 20 percent rating is warranted for limitation of motion midway between the side and shoulder level, and the highest 30 percent rating is warranted for limitation of motion of the arm to 25 degrees from the side). Specifically, the VA examiners noted the Veteran's reports of experiencing severe left shoulder pain and weakness that affected his sleep, impaired his ability to dress himself, and rendered him unable to "reach overhead or to side" or hold, lift, or carry objects with his left arm. See August 2016 and April 2023 VA Shoulder and Arm Conditions DBQs. The examiners additionally noted the Veteran's history of multiple left shoulder surgeries, steroid injections, and pain medications. See id. Range of motion (ROM) testing showed pain on active and passive motion, including throughout the range of flexion, abduction, internal rotation, and external rotation of the left shoulder, with significant tenderness/pain on palpation of the left shoulder. Id. Additionally, the VA examiners determined that left shoulder pain, weakness, lack of endurance and fatigability significantly limited the Veteran's functional ability with repeated use over time and during flares of increased symptoms. Id. Due to the residual pain and limitation of abduction resulting from his rotator cuff disability, the Veteran was unable to perform the empty-can test or the lift-off subscapularis test. Further, the Veteran had positive results on the Hawkin's impingement test (pain on internal rotation), empty can test (weakness on abduction and forward flexion), external rotation/infraspinatus strength test (weakness on external rotation), lift-off subscapularis test (weakness on internal rotation), and cross-body adduction test (pain on passive adduction). See id. The VA examiners also found that the Veteran experienced left shoulder instability and further noted objective evidence of left shoulder crepitus. See id. These additional symptoms and functional limitations resulted in difficulty or inability to perform activities requiring the use of his left arm, including lifting, carrying, grabbing, pushing, pulling, and reaching overhead and to the side. See id. As noted above, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell, 25 Vet. App. 32. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors, including weakness, excess fatigability, or incoordination. See id.; see also 38 C.F.R. §§ 4.40, 4.45 (reflecting that, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to factors including painful movement, weakened movement, excess fatigability, and/or incoordination). ? Here, based on the evidence of record and resolving all doubt in favor of the Veteran, the Board finds that, when considering the full picture of the Veteran's left shoulder disability, including the significant pain throughout the range of motion; the pain on weightbearing, non-weightbearing, active, and passive motion; the pain and weakness demonstrated on abduction, flexion, internal rotation and external rotation; the documented left shoulder instability and objective evidence of crepitus; and the tenderness/pain on palpation of the acromioclavicular (AC) joint, the Veteran's left shoulder pathology more closely approximates the criteria for a 30 percent rating under DC 5201 throughout the entire appellate period. See 38 C.F.R. § 4.71a, DC 5201. See also Mitchell, 25 Vet. App. at 43; DeLuca, 8 Vet. App. at 206-07; 38 C.F.R. §§ 4.40, 4.45. The Board observes that a 30 percent disability rating is the maximum rating provided under DC 5201 for the non-dominant shoulder. The Board recognizes that none of the available range of motion measurements meet the criteria for this higher 30 percent rating. See 38 C.F.R. § 4.71a, DC 5201. See also August 2016 and April 2023 VA Shoulder and Arm Conditions DBQs. The Veteran's left shoulder disability is, however, productive of additional functional limitation beyond what is reflected in his range of motion measurements, as discussed. Additionally, these functional impairments have remained generally consistent throughout the appellate period, as evidenced by the findings on VA shoulder examinations in 2016 and 2023. As such, staging the Veteran's rating based upon the August 2013 VA examiner's findings is unwarranted. See Hart, 21 Vet. App. at 509. Higher ratings for the shoulder and arm are available under other potentially applicable Diagnostic Codes, specifically Diagnostic Codes 5200 (ankylosis of scapulohumeral articulation) and 5202 (impairment of the humerous). However, the probative evidence of record throughout the duration of the appeal does not reflect any findings of ankylosis or impairment of the humerus. The Board observes that there are no objective findings of record which demonstrate the left shoulder was in a fixed position in either flexion or abduction. By definition, then, the Veteran does not have the required ankylosis, favorable or unfavorable to be evaluated under DC 5200. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The disability rating takes into account 38 C.F.R. §§ 4.40, 4.45, 4.59, as additional limitation of function with repetitive use over time and flare ups due to pain were recorded in the VA examinations and the Board has considered whether the additional limitation reflects changes that more nearly approximated the next higher rating criteria under DC 5200 or 5202 and are consistent with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). See also Voyles v. Brown, 5 Vet. App. 451, 454 (1993); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In this case, range of motion testing and the physical examination of the left shoulder overall did not demonstrate findings that more nearly approximate ankylosis (as noted above) or impairment of the humerus so as to warrant a higher rating under DCs 5200 or 5202. The Board has considered the lay statements of record regarding the severity of the Veteran's left shoulder disability and has relied on these reports in determining appropriate disability ratings under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has first-hand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In summary, considering the competent medical and lay evidence of record and applying the doctrine of the benefit of the doubt, the Board finds the Veteran is entitled to an increased rating of 30 percent for his left shoulder disability for the entire appellate period. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021). However, at no point during the appellate period has the Veteran demonstrated symptoms or manifestations of a left shoulder disorder that more nearly approximate the criteria for a rating in excess of 30 percent. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.