Citation Nr: 25009028 Decision Date: 07/10/25 Archive Date: 07/10/25 DOCKET NO. 17-62 425 DATE: July 10, 2025 ORDER Entitlement to an initial rating greater than 20 percent for a right shoulder disability prior to June 1, 2022, is denied. FINDING OF FACT Prior to June 1, 2022, the evidence of record indicates that the Veteran's right shoulder disability has not manifested as limitation of the major arm midway between the side and shoulder level, nor has flexion and /or abduction been limited to 45 degrees, even when considering the effects of flareups or repeated use over time. CONCLUSION OF LAW The criteria for an initial rating greater than 20 percent for a right shoulder disability prior to June 1, 2022, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes (DCs) 5003-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had military service from November 2013 to August 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The transcript is of record. In July 2023, the Board, in pertinent part, denied an initial rating greater than 20 percent for a right shoulder disability prior to June 1, 2022. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("Court" or "CAVC"). In August 2024, the parties filed a Joint Motion for Partial Remand ("JMPR"). In September 2024, the Court granted the JMPR, and vacated the decision pertaining to the increased ratings claim for the Veteran's right shoulder disability and remanded it to the Board for de novo adjudication consistent with the JMPR. In a February 2025 decision, the Board remanded the Veteran's claim for further development. Upon review, the Board finds that there has been substantial compliance with the February 2025 remand directives in that a sufficient medical opinion was received. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The Duty to Assist is not a one-way street. If the Veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the Duty to Assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body, 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the specified findings; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 1. Entitlement to an initial rating greater than 20 percent for a right shoulder disability prior to June 1, 2022, is denied. The Veteran seeks an initial rating greater than 20 percent prior to June 1, 2022, for his right shoulder disability. At his June 2022 virtual Board hearing, he indicated his right shoulder disability was worse because it was less mobile and prevented him from lifting weights at the gym. Legal Criteria The Veteran's right shoulder disability was assigned an initial 20 percent rating prior to June 1, 2022, under Diagnostic Codes (DCs) 5003-5201. 38 C.F.R. § 4.71a. The hyphenated diagnostic code indicates that degenerative arthritis in the right shoulder has been rated based on limitation of motion of the shoulder. See 38 C.F.R. § 4.20. Ratings for disabilities of the shoulder vary with the extent of disability and with which arm is affected, and a distinction is made between major (dominant) and minor sides, or "handedness." 38 C.F.R. § 4.69. The Veteran is right-handed; thus, his right shoulder and arm are considered the major upper extremity. VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board cannot apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to February 7, 2021, under DC 5201, limitation of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 20 percent rating is warranted for the minor extremity and a 30 percent rating is warranted for the major extremity. When motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity and a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a, DC 5201. Normal range of motion of the shoulder is flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, and internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. After February 7, 2021, under DC 5201, limitation of motion of the minor extremity at the shoulder level defined as flexion and/or abduction limited to 90 degrees warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level defined as flexion or abduction limited to 45 degrees warrants a 30 percent rating for the major extremity. Where flexion and /or abduction is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a, DC 5201. Factual Background The Board has reviewed the lay and medical evidence of record which are consistent with the VA examination findings. The Veteran was initially examined by VA in December 2016. He reported that he injured his right shoulder in October 2015 in a fall while playing flag football during active duty. Diagnoses assigned to the Veteran's right shoulder disability were right shoulder strain, right bicipital tendonitis, and right acromioclavicular joint osteoarthritis. The Veteran endorsed symptoms of pain caused by right shoulder flareups. Right shoulder flareups were precipitated by heavy lifting of anything more than 20 pounds. The range of motion testing of the Veteran's right shoulder was normal with 0 to 180 degrees of flexion with no objective evidence of painful motion, 0 to 180 degrees of abduction with no objective evidence of painful motion, external rotation 0 to 90 degrees and internal rotation 0 to 90 degrees with no evidence of painful motion. Repetitive motion was possible with no additional limitation in range of motion. Range of motion testing of the Veteran's left shoulder was also normal. The limiting factor in functional ability with repeated use over time reported by the Veteran was pain. However, the examiner noted that during the examination the Veteran demonstrated optimum effort in range of motion testing without evidence of any functional limitation. As the Veteran did not exhibit any decreased effort due to pain, fear of injury disuse or neuromuscular inhibition, the examiner concluded that they could not express any additional functional limitation due to pain with repetitive use over time without resorting to speculation. Muscle strength testing was normal, and muscle atrophy was absent. There was tenderness with palpation of the right shoulder AC joint. The Hawkins Impingement test which required the Veteran to flex his right arm forward to 90 degrees with the elbow bent to 90 degrees and then internally rotate his arm, demonstrated pain. All the other testing was normal. Degenerative arthritis of the Veteran's right shoulder was documented by imaging. The examiner concluded that the functional impact of the Veteran's right shoulder disability was the inability to safely lift and carry objects weighing over 25 pounds. The Veteran was afforded a March 2025 VA Shoulder and Arm Conditions examination. The diagnosis assigned to the Veteran's right shoulder disability was right shoulder strain. The Veteran endorsed right shoulder flareups precipitated by heavy lifting and repetitive arm usage with varying frequency and moderate severity lasting between one to two hours. Resting alleviated the flareups. The extent of functional impairment the Veteran experienced during a flareup was described as limited heavy lifting and excessive arm usage including lifting arm above head. The examiner opined that prior to June 1, 2022; the Veteran's right shoulder pain caused functional loss described as limited lifting. The loss was expressed in terms of loss of range of motion in degrees as 0 to 170 degrees of flexion, 0 to 170 degrees of abduction, external rotation 0 to 80 degrees and internal rotation 0 to 80 degrees. The examiner opined prior to June 1, 2022; the Veteran's reported severity, frequency, duration and functional loss during flareups and with repeated use over time affected his range of motion. Specifically, the Veteran reported mild flareups occurring weekly, lasting one to three days resulting in functional loss described as limited lifting. The loss was expressed in terms of loss of range of motion in degrees as 0 to 160 degrees of flexion, 0 to 160 degrees of abduction, external rotation 0 to 70 degrees and internal rotation 0 to 70 degrees. Analysis Considering the probative evidence above, the Board finds that an initial rating greater than 20 percent for the Veteran's right shoulder disability prior to June 1, 2022, is not warranted. Notably, prior to February 7, 2021, a rating of 30 percent under DC 5201 requires evidence of motion limited between the side and shoulder level. After the diagnostic code changes of February 7, 2021, a rating of 30 percent under DC 5201 requires evidence of flexion and /or abduction limited to 25 degrees from the side. The December 2016 VA examination, the March 2025 addendum medical opinion, and VA treatment records, however, do not demonstrate such limitation of the Veteran's right shoulder even when considering the effects of flareups or with repeated use over time. A retrospective medical opinion dated March 2025 was obtained to address where the Veteran's right shoulder pain began to cause functional loss as well as the Veteran's functional loss during flareups and with repeated use over time. The Board acknowledges the Veteran's representative argument in a June 2025 brief that the March 2025 examination was inadequate because the examiner was a Physician's Assistant and was not a specialist in orthopedic disorders; however, the Board disagrees. The March 2025 examiner conducted an in - person interview examination of the Veteran and noted a review of his medical records in the medical opinion. The March 2025 medical opinion is based on a thorough review of the evidence of record and properly considered the Veteran's lay statements. The examiner is a Physician's Assistant with five to ten years of compensation and pension experience and eleven years of overall experience. He received specific training in evaluating musculoskeletal disabilities. The Board finds the examiner competent to provide retrospective ranges of motion for a right shoulder disability as there are no complex or unusual medical opinions to provide and additionally finds that the examination report has probative value. Notably, neither the December 2016 nor March 2025 VA examination and opinions demonstrated that the Veteran's right shoulder disability manifested as limitation of the major arm midway between the side and shoulder level, nor has flexion and /or abduction been limited to 45 degrees, even when considering the effects of flareups or with repeated use over time. That level of limitation was first demonstrated at a VA examination on March 16, 2023. However, considering the Veteran's lay statements in his June 1, 2022, hearing testimony, the Board found that effective June 1, 2022, but no earlier, the evidence was at least evenly balanced that the Veteran's right shoulder disability limited his motion to midway between the side and shoulder level. There is no other probative evidence of record that reflects that the criteria for an initial rating greater than 20 percent was met or equaled to prior to June 1, 2022. Accordingly, an initial rating greater than 20 percent prior to June 1, 2022, is not warranted. The Board has also considered the provisions of 38 C.F.R. §§ 4.40 4.45, 4.59, and the holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, the Board acknowledges that the Veteran's right shoulder disability has caused painful motion resulting in limitation of motion. However, as noted above, even considering any additional functional limitation due to pain, prior to June 1, 2022 the right shoulder disability has not been manifested by motion limited to midway between the side and shoulder level or flexion and/or abduction was limited to 45 degrees from side and since June 1, 2022 the right shoulder disability has not been manifested by or flexion and/or abduction was limited to 25 degrees from side. Additionally, the Board has considered whether any other diagnostic code would provide a higher initial rating for the right shoulder disability. As lay and medical evidence shows no ankylosis of the scapulohumeral articulation, the Board finds that DC 5200 does not apply to the Veteran's right shoulder disability. 38 C.F.R. § 4.71a. DC 5202 provides ratings based on impairment of the humerus. As the lay and medical evidence shows no deformity of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union, nonunion, or loss of head of the humerus, the Board finds that DC 5202 does not apply. DC 5203 provides ratings based on impairment of the clavicle or scapula. However, the maximum rating allowable for dislocation of the clavicle or scapula of a major extremity is 20 percent, so it is less advantageous than the current 30 percent rating assigned under DC 5201 (limitation of motion. As the lay and medical evidence shows no malunion, nonunion, or dislocation of the clavicle or scapula, or impairment of function of the contiguous joint, the Board finds that Diagnostic Code 5203 is not an appropriate code to rate the right shoulder disability. In addition, a 10 percent rating is the maximum rating provided under Diagnostic Code 5003 for one major joint (left shoulder). Id. In summation, the Board finds that the evidence weighs persuasively against a finding that the criteria for an initial rating greater than 20 percent prior to June 1, 2022, for the Veteran's right shoulder disability have been met and the appeal is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As persuasive evidence of record is against the Veteran's claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.