Citation Nr: 24010091 Decision Date: 03/01/24 Archive Date: 03/01/24 DOCKET NO. 10-36 112 DATE: March 1, 2024 ORDER Entitlement to an initial 50 percent disability rating throughout the appeal for right shoulder disability (limitation of motion) is granted. Entitlement to a 30 percent disability rating, but no higher, throughout the appeal for right shoulder (dislocation) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's right shoulder disability resulted in the functional equivalent of unfavorable ankylosis of his dominant arm; abduction of the right arm is limited to 25 degrees from his side. 2. Throughout the period on appeal, the Veteran's right shoulder disability has been characterized by recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements of the major arm. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for a right shoulder disability were met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.344, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5200. 2. The criteria for a separate disability rating of 30 percent throughout the appeal for recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint of the right shoulder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.344, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to August 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2017, the Board, in part, denied the issues of entitlement to an initial disability rating in excess of 20 percent for residuals of a right shoulder disability and entitlement to TDIU. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR) dated in August 2018, the Court vacated the issues and remanded the claims to the Board for compliance with the terms of the JMPR. In January 2019, October 2020 and November 2021, the Board remanded the case for further development. In April 2023, the Board, in part, denied the issues of entitlement to an initial disability rating in excess of 30 percent for residuals of a right shoulder disability prior to January 20, 2020 and in excess of 40 percent thereafter and entitlement to a separate rating in excess of 20 percent for right shoulder dislocation prior to January 29, 2020. The April 2023 Board decision did not address whether the Veteran was entitled to a disability rating in excess of 30 percent for right shoulder separation from January 29, 2020. The Veteran appealed the Board decision to the Court. In a JMPR dated in December 2023, the Court vacated the issues and remanded the claims to the Board for compliance with the terms of the JMPR. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Right shoulder disability The Veteran contends that his right shoulder disability is more severe than is represented by the currently assigned 30 percent rating under Diagnostic Code 5201 prior to January 29, 2020, and in excess of 40 percent thereafter. The Veteran also contends that his right shoulder dislocation is more severe than is represented by the currently assigned 20 percent rating under Diagnostic Code 5202 prior to January 29, 2020. The Veteran also asserts he is entitled to a disability rating in excess of 30 percent for right shoulder separation from January 29, 2020. The record has established the Veteran is right-handed. Therefore, his right shoulder disability is rated under the criteria for the major arm. 38 C.F.R. § 4.69. Limitation of motion of the arm is rated under DC 5201. On February 7, 2021, amendments to DC 5201 became effective. Thus, for the portion of the appeal period before February 7, 2021, the pre-amended regulations will be applied, while for the portion of the appeal period from February 7, 2021, either the pre-amended or amended rating criteria will be applied, whichever results in a higher rating for the Veteran. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003); 38 C.F.R. § 4.20. Under the version of DC 5201 in effect before February 7, 2021, a 30-percent (major) or 20-percent (minor) rating was warranted where motion was limited to midway between side and shoulder level; and, a 40-percent (major) or 30-percent (minor) rating, which is the highest available under these criteria, was warranted where motion was limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201 (2020). Major indicates the arm with the dominant hand; minor indicates the arm with the non-dominant hand. The Veteran's right hand is his dominant hand, so his right arm is the major arm. The February 7, 2021 amendments to DC 5201 were slight. A 30-percent (major) or 20-percent (minor) rating is warranted where motion is limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees); and, a 40-percent (major) or 30-percent (minor) rating, which is the highest available under these criteria, is warranted where motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201 (2020). Prior to February 7, 2021, under Diagnostic Code 5202, malunion resulting in moderate deformity, or recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warranted a 20 percent rating for major joint. Malunion with marked deformity, or recurrent scapulohumeral dislocation with frequent episodes and guarding of all arm movements warranted 30 percent rating for the major joint. Fibrous union of the humerus warrants 50 percent for the major joint. Nonunion (false flail joint) warrants 60 percent for the major joint. Loss of head (flail shoulder) warrants 80 percent for the major joint. From February 7, 2021, under Diagnostic Code 5202, malunion of the humerus with moderate deformity warrants a 20 percent rating for the major joint. Malunion of the humerus with marked deformity warrants a 30 percent rating for the major joint. Recurrent dislocation of the humerus at scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent rating for the major joint. Recurrent dislocation of the humerus at scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 30 percent rating in the major joint. Fibrous union of the humerus warrants a 50 percent rating in the major joint. Nonunion of the humerus (false fail joint) warrants a 60 percent rating in the major joint. Loss of head of the humerus (flail shoulder) warrants a maximum 80 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Under Diagnostic Code 5200 (Scapulohumeral articulation, ankylosis (abnormal stiffening and immobility), when unfavorable with abduction limited to 25 degrees from one side, a rating of 50 percent is provided for a major limb and a rating of 40 percent is provided for a minor limb. Id. When intermediate between favorable and unfavorable, a 40 percent rating is provided for a major limb and a rating of 30 percent is provided for a minor limb. Id. Diagnostic Code 5200 was not amended in the regulations enacted effective February 7, 2021. The July 2009 VA joint examination report shows the Veteran experienced giving way, instability, pain, stiffness, weakness, incoordination, and decreased speed of joint motion. No locking, effusion, or tenderness were found. The Veteran noted experiencing flare-ups on a weekly, which lasted for 3 to 7 days. The severity was noted as severe. The Veteran stated that during flare-ups, he was unable to move his shoulders. Upon examination, his forward flexion was to 170 degrees. His abduction was to 160 degrees and his internal and external rotation were to 80 degrees, each. After repetitive use, his forward flexion was to 160 degrees, his abduction was to 150 degrees and his internal and external rotation were to 70 degrees, each. No ankylosis was found. The Veteran reported episodes of dislocation or subluxation less than once a year and the examiner found guarding on all movement. A September 2009 VA treatment note reflects the Veteran's shoulder showed tenderness with pain on elevation to less than 90 degrees. At the February and September 2016 VA treatment visits, the Veteran reported experiencing several episodes of locking of the right shoulder. He reported experiencing several episodes of subluxation of the right shoulder. The March 2017 VA examination report shows that he was in constant pain during flare-ups which occurred once a day and lasted, on average, 45 minutes. He stated that his shoulder would "seize up" and that he could not move when the flare-up occurred. The Veteran reported that his right shoulder "pops out periodically doing anything repetitively." Upon examination, his flexion was to 80 degrees. His abduction was to 100 degrees. The VA examiner noted the Veteran's range of motion would not allow him to put on an undershirt. There was evidence of pain with weight bearing. No additional functional loss or range of motion was noted after three repetitions. The Veteran underwent a VA shoulder examination in January 2020. The Veteran stated the right shoulder had recurrent dislocations that he reduced himself, the latest one was last night. With Tramadol, the pain is 8/10. The Veteran reported flare-ups with pain 10/10 when dislocated. Following the recurrence of dislocation, the range of motion of the right shoulder becomes much more limited. Upon examination, his flexion was to 80 degrees. His abduction was to 40 degrees and flexion to 15 degrees. Upon repetitive use testing flexion was limited to 10 degrees and abduction was limited to 30 degrees. The examiner stated pain, weakness, and lack of endurance would limit extension and abduction to 10 degrees. The examiner noted right shoulder ankylosis between favorable and unfavorable. The examiner noted a history of recurrent dislocation of the right shoulder with frequent episodes and guarding of all arm movements. At the March 2021 VA shoulder examination, the Veteran reported he continues to have right shoulder issues, pain with frequent locking and dislocating. Currently taking Tramadol. The Veteran was unwilling to perform range of motion testing due to pain to the right shoulder. The examiner noted he was able to take a shirt off and put it back on over his head without evidence of pain or limited range of motion. Based upon the foregoing and resolving reasonable doubt in the Veteran's favor, the Board finds that the above-cited evidence supports entitlement to a 50 percent rating throughout the appeal period. In reaching this determination, the Board notes that the evidence has varied, but the January 2020 VA examination shows intermediate ankylosis bordering on unfavorable ankylosis, and the March 2021 VA examination reports demonstrate the functional equivalent of unfavorable ankylosis in abduction limited to 25 degrees from the side because the Veteran was unable to perform ROM tests due to severe pain. Furthermore, prior to these examinations the Veteran reported numerous instances of his right shoulder locking up during flare-ups. The Board has considered the Veteran's consistent reports as to the severity of his symptoms. The Veteran's statements are competent evidence of his right shoulder disability symptoms as this comes to him through his senses. The Board affords probative weight to the Veteran's competent and credible lay statements because his statements are consistent with the medical evidence. Accordingly, the Board resolves interpretive doubt in favor of the Veteran and finds that the facts of this case warrant a 50 percent rating under DC 5200 for symptoms more nearly approximating unfavorable ankylosis. The Board has considered functional loss due to pain or painful motion where limitation of motion is present. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Johnson v. Brown, 9 Vet. App. 7 (1996). Given that the Veteran is already in receipt of the schedular maximum for limitation of motion of the right (major) shoulder, inquiry into the DeLuca factors is moot. Johnston v. Brown, 10 Vet. App. 80, 87 (1997). Based on the evidence of record, the Board finds that the Veteran has a history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint of the right shoulder. As described above, in the VA examination dated January 15, 2019, the examiner noted recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint of the right shoulder with frequent episodes and guarding of all arm movement. Furthermore, at the February and September 2016 VA treatment visits, the Veteran reported experiencing several episodes of subluxation of the right shoulder. At the July 2009 VA examination, the Veteran reported episodes of dislocation or subluxation, and the examiner found guarding on all movement. Under DC 5202, a 30 percent rating is warranted for recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint with frequent episodes and guarding of all arm movement for a dominant/major extremity. 38 C.F.R. § 4.71a, DC 5202. Hence, resolving reasonable doubt in favor of the Veteran, the Board finds that a 30 percent rating is warranted for the Veteran's right (dominant/major) shoulder disability based on recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint throughout the appeal. As effective February 7, 2021, DC 5202 was amended to reflect that limitation of motion may be shown by flexion and/or abduction and to clarify the degrees of range of motion that relate to movement at the shoulder level. 38 C.F.R. § 4.71a, DC 5202. The maximum rating based on recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint is still 30 percent for a dominant/major shoulder. Id. Since, the Board is granting a maximum of 30 percent rating for dislocation (subluxation) of the glenohumeral (scapulohumeral) joint of the right shoulder, a higher rating in excess of 30 percent is not warranted under both old and new DC 5202. 38 C.F.R. § 4.71a, DC 5202. Since the evidence of record, including VA examinations, does not reflect that the Veteran has impairment of the humerus, including loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus throughout the appeal period; a higher rating in excess of 30 percent is not warranted under both old and new DC 5202. 38 C.F.R. § 4.71a, DC 5202. Therefore, the Board again finds that the Veteran's right shoulder disability is adequately contemplated by the 30 percent rating criteria. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board St. Laurent, A. 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.