Citation Nr: 24015474 Decision Date: 04/10/24 Archive Date: 04/10/24 DOCKET NO. 14-34 324A DATE: April 10, 2024 ORDER Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected left shoulder disability is denied. FINDING OF FACT During the appellate period, the Veteran's left shoulder (minor extremity) disability has not manifested as flexion and/or abduction limited to 25 degrees to the side or less. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Codes 5200-5203. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1970, August 1982 to November 1982, and April 2003 to April 2006. He received the Army Commendation Medal among other badges and decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the October 2012 rating decision, the Veteran was granted a 10 percent rating for his left shoulder disability, effective November 13, 2006. In an April 2022 rating decision, a higher 20 percent rating was assigned, effective April 20, 2006. In June 2019, the Veteran provided sworn testimony before the undersigned Veterans Law Judge at a Travel Board hearing. A copy of the hearing transcript is substantially complete and has been associated with the Veteran's electronic claims file. The Veteran has not requested any additional Board hearings following the subsequent remands of his claims. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). In the December 2023 Board decision, the claim was remanded for the procurement of updated VA treatment records from August 2023 to the present and a VA left shoulder examination that complied with the United States Court of Appeals for Veterans Claims' (Court) holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). A complete review of the electronic claims file reveals that the RO substantially complied with the Board's remand directives, and the matter is ripe for final appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the December 2023 Board decision, the Veteran's claim seeking entitlement to a total disability rating based on individual unemployability (TDIU) was fully adjudicated and resolved. As such, the issue of entitlement to a TDIU during the appellate period is no longer on appeal. Neither the Veteran nor his representative has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. 1. Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected left shoulder disability is denied. The Veteran is currently receiving a 20 percent disability rating for his service-connected left shoulder disability under Diagnostic Code 5201 for the entire appellate period, dating back to April 20, 2006. See April 2022 rating decision. The Veteran seeks a higher disability rating on appeal. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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, 207 (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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or § 4.73] criteria."). 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. The changes relevant to the shoulder codes were merely clarifying in nature. If a law or regulation changes during 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, with the more favorable provision being applied to the Veteran's appeal. The rating criteria for evaluating disabilities of the shoulder distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. The injured hand of an ambidextrous individual will be considered the dominant hand for rating purposes. See 38 C.F.R. § 4.69. The Veteran is right hand dominant, and when rating the Veteran's left shoulder disability, the Board shall apply ratings based on the minor extremity. Diagnostic Code 5200 rates based on ankylosis of the scapulohumeral articulation, where the scapula and humerus move as one piece. For the minor extremity, a 20 percent rating is warranted for favorable ankylosis, abduction to 60 degrees, with shoulder reaching the mouth and head; a 30 percent rating is warranted for intermediate ankylosis between favorable and unfavorable; and a maximum 40 percent rating is warranted for unfavorable ankylosis with abduction limited to 25 degrees from the side. Diagnostic Code 5201 rates based on limitation of motion of the arm. Prior to the regulatory amendment, motion limited at shoulder level, midway between the side and shoulder level, and to 25 degrees (flexion and/or abduction) from the side, in the minor extremity, warranted 20, 20, and 30 percent ratings, respectively. Diagnostic Code 5201 was amended in February 2021 to clarify that "at shoulder level" equaled flexion and/or abduction limited to 90 degrees, and "midway between the side and shoulder level" equaled flexion and/or abduction limited to 45 degrees. Diagnostic Code 5202 rates based on other impairments of the humerus. Prior to the regulatory amendment, loss of head of (flail shoulder), nonunion of (false flail joint), and fibrous union of the humerus in the minor extremity warranted 70, 50, and 40 percent ratings, respectively. Malunion of the humerus in the minor extremity was assigned a 20 percent rating for moderate or marked deformity. Recurrent dislocation of the scapulohumeral joint in the minor extremity warranted a 20 percent rating regardless of whether it was manifested by "frequent episodes and guarding of all arm movements" or by "infrequent episodes and guarding of movement only at shoulder level." Diagnostic Code 5202 was amended in February 2021 to clarify that "at shoulder level" equaled flexion and/or abduction at 90 degrees. Diagnostic Code 5203 rates based on impairment of the clavicle or scapula. A 20 percent rating is warranted for either dislocation of or nonunion of (with loose movement) the clavicle or scapula in the minor extremity. A 10 percent rating is warranted for nonunion of (without loose movement) or malunion of the clavicle or scapula in the minor extremity. Diagnostic Code 5203 was not impacted by the February 2021 regulatory changes. In the present case, the Veteran has not alleged, and the evidence does not show left shoulder ankylosis; loss of head (flail shoulder), nonunion (false flail joint), fibrous union, or malunion of the humerus in the left shoulder; recurrent subluxation of the scapulohumeral joint in the left shoulder; or dislocation, nonunion, or malunion of the left clavicle or scapula during the appellate period. Accordingly, Diagnostic Codes 5200, 5202, and 5203 are not for application during the appellate period. The Veteran attended a VA shoulder examination in January 2007. The Veteran described a constant aching and sharp pain and weakness in his left shoulder. The pain was elicited by physical activity and relieved by rest. The Veteran was unable to lift weights. Upon examination, the left shoulder showed no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, subluxation, or guarding of movement. Range of motion testing showed flexion and abduction limited to 140 degrees, where painful motion began. The examiner stated that pain, fatigue, weakness, and lack of endurance were the Veteran's major functional impacts in the left shoulder. There was no additional limitation of motion following repetitive use testing. VA treatment records from April 2007 contain a normal physical examination of the upper extremities. VA treatment records from December 2007 described the Veteran's left shoulder passive range of motion as limited by 10 degrees less than normal. Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. VA treatment records from January 2008 showed left shoulder flexion limited to 160 degrees and abduction limited to 120 degrees. VA treatment records from June 2008 documented the Veteran's lay reports of no shoulder pain. Private treatment records from October 2008 showed pain in the left shoulder, limiting his ability to comfortably sleep or reach overhead. Upon physical examination, there was no deformity of either shoulder; no soft tissue swelling or tenderness along the courses of the clavicles or scapular spine; there was moderate acromioclavicular (AC) joint tenderness on both sides; and passive range of motion was full in the left shoulder. Private treatment records from Dr. MM between 2010 and 2012 showed continued reports of left shoulder pain, with the worst range of motion finding showing left shoulder abduction limited to 90 degrees with pain. See e.g., July 2012 records (which also described left shoulder flexion as normal and without pain). In February 2013, Dr. MM completed an assessment of the Veteran's shoulder disability. He stated that the Veteran suffered from pain in the left shoulder with 90 degrees of abduction. Dr. MM stated that the Veteran experienced pain with left shoulder flexion at midway between the side and shoulder level, and pain with left shoulder abduction at shoulder level. While the left shoulder abduction findings from Dr. MM's February 2013 assessment were largely consistent with Dr. MM's private treatment records, the findings regarding left shoulder flexion were far more severe than flexion findings observed prior to and after the assessment. Regardless, the documented findings from the February 2013 private assessment do not support a rating higher than the Veteran's current 20 percent rating under Diagnostic Code 5201. In April 2015, the Veteran attended a VA shoulder examination. He was assessed with degenerative arthritis in the left shoulder. The Veteran reported left shoulder pain all of the time, including flare ups when laying on the shoulder and when raising his shoulder over his head. Range of motion testing showed flexion limited to 130 degrees and abduction limited to 110 degrees. The veteran reported that he was unable to raise his shoulder above the head due to pain. The examiner noted pain during flexion and abduction testing. There was no evidence of pain with weight bearing, no tenderness in the joint or soft tissues, and no evidence of crepitus. Repetitive use testing was conducted, and following 3 repetitions there was no additional limitation of motion. The examiner stated that the Veteran was being examined immediately after repetitive use over time, and pain, weakness, fatigability, or incoordination did not result in additional functional loss. The examiner stated that the examination was not being conducted during a flare-up, and thus, she declined to address the additional range of motion loss the Veteran would experience in the left shoulder during flare-ups. Muscle strength was normal (5/5) with left shoulder forward flexion and abduction, without muscle atrophy. There was no left shoulder ankylosis. There was no left shoulder instability, dislocation, or suspected labral pathology. There was no suspected clavicle, scapula, AC joint or sternoclavicular (SC) joint condition in the left shoulder; and there were no conditions or impairments of the left humerus. In June 2015, Dr. MM completed an assessment of the Veteran's shoulder disability. Dr. MM estimated that pain would limit flexion in the left shoulder to 25 degrees from the side and would limit left shoulder abduction to midway between the side and shoulder level. Dr. MM stated that the Veteran experienced pain when reaching for things, and activities around the house could not be completed without pain in the Veteran's shoulders. The Board cannot find Dr. MM's June 2015 medical report to be probative in this appeal. The treatment records from Dr. MM around May and June 2015 are inconsistent with his June 2015 assessment. For instance, in the June 2015 assessment, Dr. MM stated that the Veteran's left and right shoulder flexion was limited to 25 degrees from each side, and abduction was limited to midway between each side and shoulder level. However, Dr. MM's contemporaneous treatment records from June 18, 2015 stated that the Veteran's left arm was pain free and had full range of motion, and the right shoulder had 90 percent range of motion. Given this drastic inconsistency, the Board find's Dr. MM's June 2015 private opinion to be nonprobative in this appeal due to credibility issues. VA physical therapy records from September 2016 showed left shoulder flexion limited to 90 degrees and left shoulder abduction limited to 80 degrees. VA treatment records from July 2018 noted the Veteran's diagnosis of osteoarthritis in the shoulders, but the Veteran denied decreased activity or impaired functioning. Physical examination findings described the shoulders as "normal." In October 2019, the Veteran submitted a shoulder disability benefits questionnaire completed by Dr. SF in August 2019. This physician stated that the Veteran could not use his arms during flare-ups. Left shoulder flexion and abduction were limited to 80 degrees. The physician stated that loss of full abduction would prevent the Veteran from lifting above shoulder or head level. There was no additional limitation of motion after 3 repetitions. The physician stated that painful motion and pain with and without weightbearing did not contribute to functional loss or additional limitation of motion. Tenderness was present in the left shoulder joints. Muscle strength was 4/5 with left shoulder flexion and abduction. There was no left shoulder instability, dislocation, or labral pathology. There was no impairment of the left humerus, and no dislocation, malunion, or nonunion of the left clavicle or scapula. The Veteran attended a VA shoulder examination in January 2021. The Veteran reported pain, limited range of motion, and difficulty sleeping (rolling on his shoulder while sleeping caused pain). The Veteran described flare-ups as resulting in a moderate to severe dull aching pain; lasting 30 minutes in duration; precipitated by strenuous activity such as lifting or sleeping on the shoulder; and alleviated by Tylenol. Active and passive range of motion testing showed left shoulder flexion and abduction limited to 170 degrees, with pain during weightbearing and active motion. Repetitive use testing was conducted, and after 3 repetitions, there was no additional limitation of motion in the left shoulder. The examiner stated that pain, fatigability, weakness, lack of endurance, and incoordination did not significantly limit functional ability with flare-ups or following repeated use over time. There was no muscle atrophy or ankylosis in the left shoulder. There was no left shoulder instability, dislocation, or labral pathology. There was no impairment of the left humerus, and no dislocation, malunion, or nonunion of the left clavicle or scapula. In August 2023, the Veteran submitted an impairment questionnaire completed by Dr. JR. In the questionnaire, it was noted that the Veteran had constant pain and decreased range of motion in the shoulders. Range of motion deficits were not listed in degrees. As such, this questionnaire cannot be meaningfully applied to the rating criteria, and it is of no probative value in this appeal. The Veteran attended a VA shoulder examination in September 2023. The Veteran reported left shoulder flare-ups occurring a couple of times a week, moderate in severity, and lasting minutes. The flare-ups were alleviated by ibuprofen. Active and passive range of motion testing of the left shoulder showed normal flexion and abduction at 180 degrees. There was evidence of pain with passive and active motion and weight-bearing, but it did not result in or cause functional loss. Repetitive use testing was performed and after 3 repetitions, there was no additional limitation of motion. The Veteran was not being examined immediately after repeated use over time or during a flare-up, and the examiner stated that pain, fatigability, weakness, lack of endurance, and incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. There was no muscle atrophy in the left shoulder or ankylosis. There was no left shoulder instability, dislocation, or labral pathology. In the left shoulder, there was no flail shoulder, nonunion of the humerus (false flail joint), fibrous union of the humerus, recurrent dislocation of the scapulohumeral joint, or malunion of the humerus. In the left shoulder, there was no dislocation, malunion, or nonunion of the clavicle or scapula. The probative value of the range of motion findings from the 2007, 2015, 2021, and 2023 VA examinations, cited above, is decreased because these examinations have been previously determined to be noncompliant with the Court's decisions in Correia v. McDonald, 28 Vet. App. 158 (2016) and/or Sharp, supra. To cure this evidentiary issue, a final VA shoulder examination was conducted in February 2024. The Veteran described chronic daily pain in the left shoulder with any movement, and an aching pain at night that required frequent readjustments of the shoulder while sleeping. During painful events he had to sit still and wait for the pain to subside. The Veteran described left shoulder flare-ups manifested by worsened aching pain once or twice a week, lasting several hours, and precipitated by moving the arm above the head or lifting over 10 pounds above the waist. The Veteran described the severity of his flare-ups as moderate, and they were alleviated by rest and avoidance of triggering activities. Upon physical examination, it was noted that the Veteran could not lift his left arm above 40 to 60 degrees. Active and passive range of motion testing showed left shoulder flexion limited to 40 degrees and left shoulder abduction limited to 60 degrees. Pain was noted with weight bearing, active motion, and passive motion, limiting the Veteran's ability to move his left shoulder. There was evidence of crepitus and tenderness in the left anterior shoulder joint. Repetitive use testing was conducted, and following 3 repetitions, there was additional limitation of motion. The examiner stated that abduction would be additionally limited 5 degrees to 55 degrees. Regarding flexion, the examiner listed the flexion endpoint to be 45 degrees following repetitive use testing. Regarding additional limitation of motion following repeated use over time or during flare-ups, the examiner estimated that the Veteran's left shoulder flexion and abduction would be additionally limited to 30 degrees and 50 degrees respectively. There was no muscle atrophy or ankylosis in the left shoulder. Left shoulder instability, dislocation, or labral pathology was not suspected. There was no left clavicle or scapular impairment (malunion, nonunion, or dislocation). There was no loss of head (flail shoulder), nonunion (false flail shoulder), malunion, or fibrous union of the humerus in the left shoulder. There were no recurrent dislocations at the scapulohumeral joint in the left shoulder. The February 2024 examination substantially complied with Correia and Sharp, and based on the Veteran's lay reports of functional loss during flare-ups or following repeated use over time, the examiner determined that the Veteran would experience left shoulder flexion limited to 30 degrees and left shoulder abduction limited to 50 degrees during such circumstances. To cure the insufficiencies from the prior VA examinations of record, the Board finds it appropriate to retroactively apply these results for the entire appellate period. This is favorable to the Veteran, as the February 2024 VA examination showed the most restrictive range of motion findings in the record. To the extent that the electronic claims file contains additional findings in the private and VA treatment records that were not addressed above, such findings did not show left shoulder flexion worse than 30 degree or abduction worse than 50 degrees. As the Veteran's left shoulder flexion and abduction have been limited, at worst, to 30 degrees and 50 degrees, respectively, throughout the appellate period, such findings are commensurate with his current 20 percent rating under Diagnostic Code 5201. The Veteran has never experienced left shoulder flexion and/or abduction limited to 25 degrees from the side during the appellate period sufficient to support a higher 30 percent rating under the minor extremity rating criteria found in Diagnostic Code 5201. At the June 2019 Board hearing, the Veteran testified that he could only lift his left shoulder to 45 degrees (halfway between shoulder level and the side) before having pain. He agreed with the undersigned's statement that he experienced pain with lifting heavy objects. As a layperson, the Veteran is competent to report his symptoms of pain and lifting difficulties, and his subjectively perceived limitation of motion, as this is within the realm of his personal knowledge and experience. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994). The Veteran's reports regarding pain and lifting/carrying ability are credible as they are largely corroborated by the probative medical evidence of record. The lay evidence showing 45 degrees of limitation in the left shoulder does not support a higher rating under Diagnostic Code 5201. While the evidence has failed to demonstrate the presence of left shoulder ankylosis during the appellate period, the February 2024 VA examiner's report contains statements and findings that have raised the issue of functional ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). In Chavis, the Court noted that the rating criteria define ankylosis in terms of limitation of motion. Id. at 9. Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). In this case, although the Board acknowledges the Veteran's lay reports of symptoms of pain, stiffness, limited range of motion/mobility, and difficulty lifting or raising his arm above his head-indicative of some functional loss-the Board concludes that such alleged functional loss is not consistent with that contemplated by ankylosis. In this case there is no evidence that the Veteran's scapula and humerus move as one piece, which is a requirement for a rating under the ankylosis code, Diagnostic Code 5200. Moreover, the Veteran has maintained articulation of the left shoulder, and it is not fixed in place. For example, at the June 2019 Board hearing, the Veteran testified that he could lift his shoulder to 45 degrees and carry items weighing similar to a grocery bag. At the February 2024 VA examination, the examiner stated that the Veteran's functional loss was best described as "unable to move left shoulder in any motion," however such a statement is in conflict with the examiner's range of motion findings, which do not show immobility in the left shoulder or range of motion limited to zero degrees. As such, the Board cannot find this statement to be probative in this appeal. The Board does not find probative evidence that the Veteran has experienced functional ankylosis in the left shoulder during the period on appeal. For the entire appellate period, the evidence shows left shoulder flexion of no worse than 30 degrees and left shoulder abduction of no worse than 50 degrees, commensurate with his currently assigned 20 percent rating under Diagnostic Code 5201. The evidence has not probatively shown left shoulder motion with flexion and/or abduction limited to 25 degrees from the side sufficient to support a higher disability rating under Diagnostic Code 5201 during the appellate period. Moreover, none of the other shoulder diagnostic codes are for application based on the Veteran's specific medical circumstances. The evidence is not in approximate balance and persuasively weighs against the Veteran's claim. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). The Veteran's appeal seeking a disability rating in excess of 20 percent for his service-connected left shoulder disability is denied for the entire appellate period. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.