Citation Nr: 25003365 Decision Date: 03/11/25 Archive Date: 03/11/25 DOCKET NO. 15-14 551A DATE: March 11, 2025 ORDER Entitlement to an increased disability rating of 40 percent, but not higher, for right shoulder status post separation with chondromalacia (hereinafter right shoulder disability) from March 30, 2011, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT Affording the benefit of the doubt to the Veteran, from March 30, 2011, his right shoulder disability has more closely approximated limitation of motion of the arm to 25 degrees from the side. CONCLUSION OF LAW From March 30, 2011, the criteria for entitlement to a maximum schedular 40 percent rating for right shoulder limitation of motion are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.69, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to March 1970. The instant matter has an extensive procedural history which, in relevant part, is outlined below. In March 2012, the Veteran filed a formal claim seeking an increased evaluation for his service-connected right shoulder disability. In July 2012, the agency of original jurisdiction (AOJ) issued a rating decision, currently on appeal, which increased the evaluation for the Veteran's right shoulder disability from noncompensable to 10 percent. The Veteran submitted a timely notice of disagreement (NOD) in August 2012, and a statement of the case (SOC) was issued in April 2015 which continued the 10 percent evaluation. In May 2015, the Veteran submitted a substantive appeal to the Board. In February 2019, the Board remanded the claim for a new severity examination. In August 2020, the AOJ issued a supplemental statement of the case (SSOC) which continued the 10 percent evaluation for the Veteran's shoulder disability, noting that the Veteran failed to appear for his examination without good cause. In June 2021, the Board remanded the claim to provide the Veteran another opportunity to schedule the directed VA examination. Following that development, in December 2021, the AOJ issued a rating decision which increased the evaluation for the Veteran's service-connected shoulder disability from 10 to 20 percent, effective March 30, 2012. In February 2022, the Veteran's representative challenged the qualifications of the 2021 VA examiners. Consequently, the Board remanded the claim in March 2022 and August 2022 to provide the Veteran the qualifications of the 2021 VA examiners. In January 2023, the Board issued a decision denying an evaluation higher than 20 percent for the Veteran's service-connected shoulder disability. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). In a December 2023 Joint Motion for Remand (JMR), CAVC vacated the Board's January 2023 rating decision and remanded for readjudication. Upon return to the Board in April 2024, the claim was remanded for further development, including for potentially outstanding private treatment records and a new examination and opinion. In January 2025, the AOJ issued an SSOC which continued the 20 percent evaluation for the Veteran's shoulder disability. As to the post-remand development, an adequate VA examination and opinion were provided in October 2024 as directed by the Board remand. As to the potentially outstanding private treatment records from Athens Orthopedic Clinic, faxed records from the provider were received in December 2024. While the records reflected treatment in 2022 for the Veteran's knee disorder, the Veteran confirmed during the October 2024 VA examination that he had not seen a medical provider for his right shoulder disorder for over 10 years. As such, the Board finds that the AOJ substantially complied with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The appeal now returns to the Board for adjudication. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, and the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800. 38 U.S.C. § 7107. Increased Ratings Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). 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 is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Rating Criteria - Shoulder Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Other important factors include excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33, 422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (DC 5200), limitation of motion of the arm (DC 5201), other impairment of the humerus (DC 5202), or impairment of the clavicle or scapula (DC 5203). The Veteran's service-connected right shoulder disability is currently rated as 20 percent disabling, evaluated under DC 5201 for limitation of motion of the arm. Under DC 5201, there are two sets of ratings, major and minor. The major rating is to be used when rating a disability of the dominant arm and the minor rating is to be used when rating a disability of the non-dominant arm. See 38 C.F.R. § 4.71a, DC 5201. Here, as the Veteran is right-handed and the disability at issue effects the Veteran's right arm, the applicable rating is the major rating. Under the former rating criteria for DC 5201, a 20 percent rating is warranted for limitation of motion of the arm at shoulder level for both the major and minor extremity. Limitation of motion of the arm from midway between the side and shoulder level for a major extremity is rated at 30 percent and 20 percent for a minor extremity. Limitation of motion to 25 degrees from the side is rated at 40 percent for a major extremity and 30 percent for a minor extremity. 38 C.F.R. § 4.71a. The Board observes that the criteria for DC 5201 prior to and after the regulatory change are similar. The revised VA regulations, effective February 7, 2021, clarify that "shoulder level" equates to flexion and/or abduction limited to 90 degrees, "midway between side and shoulder level" equates to flexion and/or abduction limited to 45 degrees, and "to 25 degrees from side" equates to flexion and/or abduction limited to 25 degrees from side. The normal range of motion of the shoulder is from 0 degrees of flexion (forward elevation) to 180 degrees of flexion, from 0 degrees of abduction to 180 degrees of abduction, from 0 degrees of external rotation to 90 degrees of external rotation, and from 0 degrees of internal rotation to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. Entitlement to an evaluation greater than 20 percent for right shoulder disability The Veteran seeks an increased rating for his right shoulder disability, currently rated 20 percent disabling under DC 5201 from March 30, 2012, the date he filed his increased rating claim. 38 C.F.R. § 4.71a, DC 5201. As an initial matter, on March 30, 2012, VA received the Veteran's claim for an increased rating of his service-connected right shoulder disability. The Board will generally review evidence from that date and during the one year "look back" period preceding the submission of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As such, the appeal period before the Board is from March 30, 2012, the date VA received the claim for an increased rating, plus the one year look back period. For the reasons that follow, the Board finds that a rating of 40 percent is warranted for the Veteran's right shoulder disability under DC 5201 for the entire period on appeal. Turning toward the medical evidence of record, throughout the appeal period, the Veteran has complained of chronic right shoulder pain, loss of strength, and limitation of motion. For example, at a June 2012 primary care visit establishing care at VA, physical examination of the extremities reflected a right-hand grip of 2/5 and muscle strength of the upper extremities at 3/5. A February 2013 treatment record notes shoulder pain rated at 7/10 which the clinician noted began within the last four years. VA treatment records from 2015 document chronic right shoulder pain at a 7/10 level. An August 2018 primary care visit notes aching shoulder pain for more than 10 years with a current pain level of 5/10. An April 2019 primary care visit includes a report of pain of 6/10 for more than 20 years for which he takes Tylenol for the pain. See April 2016 CAPRI, primary care progress notes of June 27, 2012, February 15, 2013, and July 27, 2015; January 2025 CAPRI, primary care progress notes of August 6, 2018, and April 26, 2019. During the period on appeal, the Veteran was afforded VA examinations in July 2012, July 2021 (with a September 2021 addendum opinion), and October 2024. During the July 2012 examination, the Veteran reported flare-ups which caused pain, an inability to lift heavy objects, and an inability to raise his right hand above his head (ongoing for the past 10 years). Physical examination results revealed right shoulder flexion which ended at 115 degrees with painful motion beginning at 25 degrees. Right shoulder abduction ended at 110 degrees with painful motion beginning at 35 degrees. There was no change in range of motion measurements after repetitive use testing. The July 2012 examination report was negative for ankylosis. During the July 2021 examination, the Veteran endorsed moderate to severe flare-ups which occurred once a week or more and lasted 14 to 16 hours. Physical examination results revealed right shoulder flexion which ended at 125 degrees and abduction at 65 degrees. The examiner found pain on all planes with no limitation of motion specifically attributable to pain. Passive range of motion measurements were found to be the same as active with no change in range of motion measurements after repetitive use testing. The examiner provided an estimate with repeated use over time and during flare ups of flexion at 120 degrees and abduction at 60 degrees, with pain and lack of endurance significantly limiting functional ability. The July 2021 examination report was negative for ankylosis. Per the June 2021 Board remand, in September 2021, the AOJ obtained a retrospective opinion (from a different examiner). The examiner found that the record during the period on appeal reflected right shoulder symptoms of pain and weakness, especially with movements overhead, reaching, backward movements, and pushing and pulling. The examiner noted moderate to severe flare-ups which occurred one to two times a week and resulted in interference of all movements of the right shoulder. The examiner stated that an estimate of that loss in terms of degrees was not possible to assess retrospectively. During the October 2024 examination, the Veteran endorsed severe flare-ups of intense throbbing right shoulder pain with limited range of motion which occurred once a week and lasted two to three hours. As a result, he was unable to lift his arm over his head or lift 10 pounds. Physical examination results revealed right shoulder flexion which ended at 120 degrees and abduction at 65 degrees. The examiner found pain on all planes with no limitation of motion specifically attributable to pain. The examiner noted moderate pain on palpation of the right shoulder with the Veteran reporting a pain level of 6/10. Passive range of motion measurements were the same as active. There was no change in range of motion measurements after repetitive use testing. The examiner estimated that with repeated use over time and during flare ups, a flexion measurement of 115 degrees and abduction at 60 degrees, with pain, fatigability, weakness, lack of endurance, and incoordination significantly limiting functional ability. Per the April 2024 Board remand, the October examiner provided a retrospective opinion which stated that the Veteran's right shoulder range of motion had remained about the same since March 2012. After review of the medical evidence of record and the findings on the current examination, the examiner determined that, with consideration of flareups and repeated use over time, the Veteran's right shoulder disability did not approximate the functional equivalent of ankylosis at any time from March 30, 2012, to present. The Board notes the Veteran's use of medication through the appeal period to alleviate his symptoms. However, in assigning a rating for the Veteran's shoulder disability, the Board may not consider the ameliorative effects of medication as the effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Upon review, the Board finds that the evidence is at least evenly balanced as to whether a 40 percent evaluation for right shoulder disability is warranted for the period on appeal. The July 2012 examination estimated that painful motion for right shoulder flexion began at 25 degrees, which is contemplated by the 40 percent rating. While the most recent examination report of October 2024 estimated the Veteran's right shoulder flexion at worst (after repeated use over time and during flare ups) at 115 degrees for flexion and 60 degrees for abduction (reflecting a 20 percent disability rating), the examiner also stated in her retrospective opinion that the Veteran's right shoulder range of motion has remained about the same since March 2012. The Board acknowledges that the July 2021 VA examination report and associated September 2021 addendum opinion reflected similar results to those in the October 2024 examination report, with range of motion at worst with flexion at 120 degrees and abduction at 60 degrees, however, as previously found by the Board, the 2021 examination reports were flawed and, as such, afforded less probative value. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to a disability rating of 40 percent for right shoulder disability, under DC 5201 is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7. The Board further notes that it appears that in the July 2012 rating decision on appeal, the AOJ did not consider the one-year look back period under Gaston in evaluating the Veteran's service-connected right shoulder disability, even though VA treatment records reflect an increase of pain to 7/10 had begun prior. While there is no direct evidence showing worsening of the Veteran's service-connected right shoulder disability during this period, which would trigger the one-year look back period under Gaston, the Board will resolve all reasonable doubt in the Veteran's favor and concede that the symptoms of his right shoulder disability had been worsening for some time prior to the 2012 VA examination, as reflected in the 2012-2013 VA treatment records. As such, a 40 percent evaluation for the Veteran's service-connected right shoulder disability is warranted from March 30, 2011. 38 U.S.C. §§ 5107, 5110(b); 38 C.F.R. §§ 3.102, 3.400(o)(2), 4.71a, DC 5201; Gaston, 605 F.3d at 979, 982, Gilbert, 1 Vet. App. at 49, 53. With the grant herein, of 40 percent for the appeal period, the Veteran's right shoulder disorder is at the maximum rating under DC 5201. The Board next considers whether a higher rating under other DCs are applicable to the shoulder and arm. Other Ratings for the Shoulder and Arm The Board has considered whether any other DCs related to disabilities of the shoulder would provide for a higher disability rating. The probative evidence of record fails to show that the Veteran's right shoulder disorder was manifested by impairment of the right humerus (DC 5202) or of the clavicle or scapula (DC 5203). Therefore, a rating under DC 5202 or DC 5203 is not for application. DC 5200 also provides a rating based on limitation of motion where there is ankylosis. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). The note to 38 C.F.R. § 4.71a , DC 5200 defines ankylosis of the shoulder as when "the scapula and humerus move as one piece." As previously noted, in Chavis, the Court held that in the absence of a medical diagnosis of ankylosis, a claimant may still receive benefits associated with ankylosis based on the functional equivalent of ankylosis (i.e., the claimant's symptoms sufficiently resemble ankylosis despite the absence of a formal diagnosis). Chavis, 34 Vet. App. at 1. DC 5200 is unchanged by the revised rating criteria. A 50 percent disability rating is warranted for unfavorable ankylosis with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5200 (2023). While VA's rating schedule recognizes that a single disability may result from more than one distinct injury or disease, rating the same disability or its manifestation(s) under different DCs, a practice known as pyramiding, is prohibited. See 38 C.F.R. § 4.14. The critical element in permitting the assignment of several evaluations under various DCs is that none of the symptomatology for any one of the disorders is duplicative or overlapping with the symptomatology of the other disorder. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, DC 5200 and DC 5201 both evaluate the Veteran's limitation of motion of the right shoulder. As such, the inquiry for the Board is not whether DC 5200 applies in addition to DC 5201, but rather if the assignment of DC 5200 better captures the Veteran's disability picture for the period on appeal. In his appellate brief of September 2023 (received December 2023), the Veteran's attorney raised the issue of functional ankylosis pursuant to Chavis. The Veteran's attorney referenced the September 2021 VA opinion which stated that from March 2012 forward, the Veteran had pain and weakness, especially with overhead, reaching, backwards movements, and pushing/pulling. Moderate to severe flare-ups occurred one to two times per week, resulting in "interference of all movements" of the shoulder, though estimation of the range of motion loss was not possible to assess retrospectively. Consequently, per the April 2024 Board remand, the October 2024 examiner provided a retrospective opinion on the issue of functional ankylosis. Following review of the medical evidence of record and the findings on the current examination, the examiner determined that, with consideration of flareups and repeated use over time, the Veteran's right shoulder disability did not approximate the functional equivalent of ankylosis at any time from March 30, 2012, to present. The medical evidence of record during the period on appeal, including VA treatment records and the VA examination reports of July 2012, July 2021, September 2021, and October 2024, reflect that right shoulder ankylosis was not found on objective testing. At worst, in the July 2012 examination, right shoulder abduction noted painful motion beginning at 35 degrees. While lay evidence of record reflects consistent reports of pain and functional loss, there are no reports of the Veteran's right shoulder and arm being immobile or fixed to any degree. During all VA examinations during the period on appeal, the Veteran consistently reported his functional loss as difficulty lifting heavy objects or raising his hand above his head. Upon review, the Board acknowledges the Veteran's competent and credible lay reports of symptoms of pain, stiffness, limited range of motion/mobility, difficulty lifting heavy objects, and difficulty lifting or raising his arm above his head, all of which are indicative of some functional loss. The Veteran is competent to report symptoms such as shoulder pain and difficulty in movement, which requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the lay evidence of record does not support a level of functional loss consistent with functional ankylosis as contemplated in Chavis. As to the September 2021 VA opinion, while functional ankylosis was not directly addressed, the Board finds that the examiner's comments that flare-ups resulting in interference with all movements does not imply immobilization. A plain reading of the examiner's comments reflects that the Veteran had difficulty moving his right shoulder on all planes, in all directions, during flare-ups, however the examiner was unable to estimate these limitations of movement in range of motion measurements retrospectively. Given the above, the Board finds that there was no functional limitation that more nearly approximates ankylosis. Even when considering the effects of flareups and repeated use over time, the evidence shows that the Veteran retained right shoulder and arm movement sufficient to participate in range of motion testing upon examination. Further, the Veteran has not reported that he is unable to move his arm and shoulder during flare-ups or after repeated use over time. Such a disability picture is not consistent with an immobile or consolidated joint or one that is fixed or frozen in one position. Therefore, the Board finds that the symptoms experienced during the period on appeal are adequately compensated by the assigned 40 percent rating under DC 5201, and a higher rating is not warranted. In sum, the Board finds that from March 30, 2011, an increased rating of 40 percent, but not higher, for the Veteran's service-connected right shoulder status post separation with chondromalacia is warranted. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.69, 4.71a, Diagnostic Code (DC) 5201, Gilbert, 1 Vet. App. at 49, 53. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Horan, Deborah E. 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.