Citation Nr: A25035163 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240812-462464 DATE: April 16, 2025 ORDER Entitlement to an initial rating of 40 percent for right shoulder arthritis is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's right shoulder arthritis (major), during flare-ups, more nearly approximates the criteria of limitation of motion of flexion and/or abduction limited to 25 degrees from side. CONCLUSION OF LAW The criteria for a rating of 40 percent for right shoulder arthritis, (major), effective August 28, 2018, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1979 to February 1999, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, in a January 2024 Board decision, the Board granted service connection for a right shoulder disability. Pursuant to the Board decision, in the January 2024 rating decision, the RO implemented the award of service connection and rated the Veteran's right shoulder arthritis as 20 percent disabling effective August 28, 2018, under Diagnostic Code 5201. In April 2024, the Veteran filed a request for Higher Level Review (HLR), and in an August 2024 rating decision, the RO confirmed and continued the evaluation of 20 percent for right shoulder arthritis and granted service connection for right shoulder arthroscopy surgical scars evaluated as noncompensable effective August 28, 2018. In the August 2024 VA Form 10182, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the notice of the January 2024 agency of original jurisdiction (AOJ) decision on appeal.? 38?U.S.C. §?20.301.??In light of the above, the period before the Board began on August 28, 2018, the date of the Veteran's intent to file and the record closed on the date of the notice of the January 2024 rating decision.? 38?U.S.C. §?5103A(e)(1).? The Board interprets the Veteran's statements as reflecting an intent to have this matter reviewed in an expeditious manner, which the Board finds to be an implicit waiver of the Veteran's right to change Board dockets under Williams v. McDonough, 37?Vet. App.?305 (2024).? Moreover, as the Board is granting the matter, the Veteran will not be prejudiced. As such, the Board will proceed to adjudicate this matter.? Increased Rating? Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 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."). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). 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. The Board considers a claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, at which point the criteria that is more favorable to the Veteran will be applied. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Entitlement to an initial rating of 40 percent for right shoulder arthritis is granted. The Veteran asserts that his service-connected right shoulder arthritis is worse than the currently assigned rating reflect. See August 2024 VA Form 10182. The Veteran's right shoulder arthritis is rated as 20 percent disabling effective August 28, 2018, under Diagnostic Code 5201. See January 2024 rating decision. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Codes 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202) or the impairment of the clavicle or scapula, to include dislocation (Diagnostic Code 5203). In considering the applicability of other diagnostic codes, the Board finds that Codes 5200, 5202, and 5203 do not apply. Accordingly, the criteria pertaining those conditions are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the evidence shows that the Veteran is right-handed, therefore his right shoulder is his major shoulder for rating purposes. Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Under Diagnostic Code 5201, where arm limitation of motion is limited to 25 degrees from the side, a 40 percent evaluation is assigned for the major side under diagnostic code 5201 (30 percent for minor side). Limitation of motion midway between the side and shoulder level contemplates a 30 percent evaluation for the major side (20 percent for minor side), and limitation of motion at shoulder level contemplates a 20 percent evaluation for the major side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Effective February 7, 2021, VA amended Diagnostic Code 5201 to clarify that loss of motion includes flexion or abduction. Additionally, specific range of motion measurements were established. For a 20 percent rating, at shoulder level, flexion and/or abduction limited to 90 degrees. For a 30 percent rating (20 percent minor side), midway between side and shoulder level, flexion and/or abduction limited to 45 degrees. For a 40 percent rating (30 percent for minor side), flexion and/or abduction limited to 25 degrees from side. After a review of the evidence of record, the Board finds that an initial 40 percent rating is warranted throughout the appeal period for the Veteran's right shoulder arthritis. The Veteran was afforded a VA examination to assess his shoulder and arm conditions in January 2019. The Veteran was diagnosed with right shoulder arthritis, and the examiner denied reports of flare-ups or functional impairment. Range of motion testing revealed flexion to 140 degrees, abduction to 150 degrees, and internal and external rotation to 90 degrees. The examiner indicated there was pain noted on range of motion, but it did not result in or cause functional loss. The Veteran also reported that his pain has worsened, and the examiner noted pain during the active and passive range of motion tests, and pain with non-weight bearing activities. To the extent the January 2019 VA examination indicated the Veteran experienced no flare-ups, the Board finds such notation to be inconsistent with the Veteran's testimony, and inconsistent with the findings on examination (revealing abnormal range of motion, and no additional loss of function or range of motion after repetitive range of motion testing, however pain was consistently noted) and therefore the adequacy of such examination is in question. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In the July 2020 private medical opinion, E.O., noted that the Veteran experienced significant limitations to the range of motion and functional ability of his right shoulder, particularly during a flare-up, limiting weight-bearing and non-weight bearing activities. Range of motion testing revealed flexion to 140 degrees, abduction to 150 degrees, and internal and external rotation to 90 degrees. Further, E.O. opined that during a flare-up, the Veteran's range of motion testing is estimated as flexion to 45 degrees, abduction to 25 degrees, and internal rotation to 0 degrees, and external rotation to 45 degrees. The Veteran also reported suffering from flare-ups and symptoms of pain, incoordination, and limited motion. After review of the competent and probative evidence, the Board finds that an initial 40 percent rating for the Veteran's right shoulder disability is warranted under Diagnostic Code 5201. In this regard, the functional limitations during flare-ups, as described by the Veteran, reasonably approximate limitation to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201; see also July 2020 correspondence. The Veteran has consistently reported that he has essentially minimal functional use when he experiences flare-ups when he uses the arm on a routine basis for daily tasks. His contentions are documented in the July 2020 medical opinion, which is the only relevant opinion not deemed inadequate during the period subject to this appeal, as well as in a July 2020 Statement in Support of Claim. While the range of motion limitations during a flare-up are only an estimate, a careful reading of the Veteran's complaints, and throughout the relevant records, persuades the Board that, functionally, this level of limitation is appropriate. In light of the foregoing, the Board finds that the Veteran's right shoulder pain and corresponding functional impairment, including during flare-ups, indicate that the Veteran's right shoulder disability is productive of limitation of motion to 25 degrees from his side. Consequently, the Board finds that the maximum 40 percent rating for limitation of motion is warranted for the Veteran's right shoulder arthritis effective August 28, 2018. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Nettles, Associate 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.