Citation Nr: 1315599 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 05-05 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability evaluation higher than 10 percent for residuals of a left shoulder injury, prior to May 1, 2007. 2. Entitlement to an initial disability evaluation higher than 10 percent for residuals of a left shoulder injury, from May 1, 2007. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2010, the matter was remanded to the RO for a statement of the case to be sent to the Veteran at his current address. After the statement of the case was mailed in August 2010, the Veteran perfected an appeal in September 2010. FINDINGS OF FACT 1. Prior to May 1, 2007, the Veteran's left shoulder disability was not manifested by nonunion of the clavicle or scapular with loose bodies and limitation of motion of the arm was not limited to shoulder level or lower. 2. From May 1, 2007, the Veteran's left shoulder disability has been manifested by the functional equivalent of arm limitation of motion to shoulder level. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent, prior to May 1, 2007, for the Veteran's left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes 5201, 5203 (2012). 2. The criteria for a 20 percent, but no higher, for the left shoulder disability have been met, from May 1, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes 5201, 5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 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. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25. However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In cases such as this in which the Veteran has appealed the initial rating assigned at the time service connection is established, in assigning the initial rating, the Board must consider the propriety of assigning one or more levels of rating-"staged" ratings-from the initial effective date forward, based on evidence as to the severity of disability. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007) (Even in a claim for an increase in the level of an already service-connected disability, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.). VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). Under Diagnostic Code 5203, for impairment of the clavicle or scapula, the highest rating available is 20 percent for dislocation of the major or minor extremity, or for nonunion with loose movement of the major or minor extremity. Nonunion without loose movement or malunion of the major or minor extremity is rated 10 percent disabling. Otherwise the Code instructs to rate on impairment of function of a contiguous joint. Other applicable criteria include Diagnostic Code 5201. Under Diagnostic Code 5201, the criterion for a 20 percent rating is limitation of the major and minor arm either at shoulder level or midway between side and shoulder level for the minor arm. The criterion for a 30 percent rating is limitation of the major arm midway between the side and shoulder level. The criterion for a 30 percent rating is limitation of motion of the minor arm to 25 degrees from the side. The criterion for a 40 percent rating is limitation of motion of the major arm to 25 degrees from the side. Normal range of motion of the shoulder is zero degrees to 180 degrees of flexion and abduction. See Plate I. Analysis The Veteran's service-connected left shoulder disability is rated as 10 percent disabling under Diagnostic Code 5203. He asserts that a higher rating is warranted. The January 2005 rating decision reflects service connection was granted for residuals of a left shoulder injury with subluxation and an initial 10 percent evaluation was assigned under Diagnostic Code 5203 pertaining to impairment of the clavicle or scapula. The Veteran asserts that his left shoulder disability is worse than reflected in the 10 percent rating assigned. Although the October 2004 VA examination report notes moderate disability of the left shoulder, the November 2004 VA examiner concluded that subluxation of the left shoulder was minimally disabling. The October 2004 VA examination report reflects anterior flexion of the left shoulder to 180 degrees and extension to 70 degrees. Abduction was to 135 degrees. External rotation was to 90 degrees and internal rotation was to 90 degrees. Although the impression was recurrent dislocation of the left shoulder, subsequent x-ray examination of the left shoulder was noted to show no fracture or dislocation, and no abnormalities were noted. The November 2004 VA examination report reflects full active range of motion of the left shoulder with forward flexion from 0 to 180 degrees. Abduction was from 0 to 180 degrees, and although pain from 70 to 90 degrees of abduction was noted, neither that nor possible impingement syndrome noted on magnetic resonance imaging (MRI) of the left shoulder in April 2005 establishes limitation of motion of the arm at shoulder level or lower to warrant a higher rating under Diagnostic Code 5201. The April 2007 report of examination reflects forward flexion of the left shoulder to 180 degrees and abduction to 180 degrees, and no weakness, fatigability or loss of coordination during or following three repetitions of range of motion in all planes was reported. A negative sulcus sign was noted and drop arm test was reported to be negative. The June 2012 VA examiner determined that degenerative changes of the acromioclavicular joint, a superior labral tear from anterior to posterior (SLAP) tear, atrophy, and tendonosis with a possible tear of the supraspinatus tendon are all related to the service-connected residuals of a left shoulder injury. It was noted that the type of injury the Veteran sustained to the left shoulder during service was a known cause for the conditions. The June 2012 VA examination report reflects left shoulder flexion to 150 degrees and abduction to 150 degrees. Pain was noted to begin 110 degrees on both flexion and abduction. Coupled with the additional functional loss, tenderness on palpation of the acromioclavicular joint, and daily flare-ups with constant pain impacting the function of the left shoulder, to include with lifting, the Board finds the disability picture due to the residuals of a left shoulder injury more nearly approximates the criteria for a 20 percent rating under Diagnostic Code 5201 based on the functional equivalent of limitation of motion of the left arm to shoulder level. Although it is clear that the Veteran has had an increased degree of impairment due to the service-connected left shoulder disability since the April 2007 VA examination, the Board is simply unable to determine the exact date of the increase. In view of the reason for the lengthy period of time between the April 30, 2007 VA examination and the June 2012 VA examination during the appeal, and resolving doubt in the Veteran's favor, a 20 percent rating is warranted from May 1, 2007, the day after the April 2007 VA examination. A rating higher than 20 percent is not warranted at any time during the appeal period. A 20 percent rating is the maximum evaluation under Diagnostic Code 5203, and at no time during the appeal has left arm motion been limited to midway between the side and shoulder level to warrant a higher rating under Diagnostic Code 5201. To the extent that interference with employment has been asserted, the April 2007 VA examination report notes the Veteran was unemployed due to right knee instability, a September 2004 VA treatment record notes he was unable to do physical labor with his hand due to carpal tunnel syndrome, and a November 2012 rating decision reflects a total disability rating based on individual unemployability was granted, effective in February 2004 due to the aggregate of his service-connected disabilities. Regardless, the 10 percent evaluation assigned for residuals of a left shoulder injury, prior to May 1, 2007, and the 20 percent evaluation thereafter granted in this decision, contemplate impairment in earning capacity, including loss of time from exacerbations of the left shoulder disability. 38 C.F.R. § 4.1. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds no other provision upon which to assign a rating higher than the 20 percent rating granted in this decision, from May 1, 2007. In reaching a determination, the Board has considered the Veteran's competent report of symptoms, and has accorded significant probative value to the VA examination reports and opinions. The rationales for the opinions provided are based on objective findings, reliable principles, and sound reasoning. The evidence is in favor of a 20 percent rating, from May 1, 2007. To that extent, a higher rating is warranted. ORDER Prior to May 1, 2007, a disability evaluation higher than 10 percent for residuals of a left shoulder injury is denied. From May 1, 2007, a 20 percent disability evaluation for residuals of a left shoulder injury is granted, subject to the regulations governing monetary benefits. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs