Citation Nr: 1751564 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-11 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to a rating in excess of 20 percent for left shoulder degenerative arthritis. 2. Entitlement to a rating in excess of 20 percent for left shoulder muscle weakness. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ryan INTRODUCTION The Veteran served on active duty from October 1985 to October 1990. This appeal arose to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran presented testimony at a video conference with the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. The Board previously remanded this issue for further evidentiary development in January 2017. FINDINGS OF FACT 1. The Veteran's left shoulder degenerative arthritis is manifested by limitation of motion of the arm at the shoulder level. 2. The Veteran's left shoulder condition is manifested by dislocation of the clavicle. 3. The Veteran's left shoulder weakness and instability is manifested by severe instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the Veteran's left shoulder arthritis condition are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5201. 2. The criteria for a rating of 20 percent for a dislocation of the left clavicle are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5203. 3. The criteria for a rating of 30 percent for instability of the left shoulder condition have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, knee joints in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran's left shoulder disability is rated under Diagnostic Codes 5201 and 5303. Diagnostic Code 5201 is the Diagnostic Code applicable to the shoulder joint, and provides that, with regard to the minor (non-dominant) joint, limitation of motion of the arm at the shoulder level warrants a 20 percent rating; limitation of motion to midway between the side and shoulder level also warrants a 20 percent rating; and limitation of motion to 25 degrees from the side warrants a 30 percent rating. Diagnostic Code 5303 provides that a 10 percent rating is available for moderate stabilization of the shoulder against injury in strong movements; 20 percent is appropriate for moderately severe stabilization, and 30 percent available for severe stabilization. A review of the facts reveals the following: A March 2010 Compensation and Pension (C&P) examination revealed flexion measuring 0 to 115 degrees; abduction measuring 0 to 120 degrees; external rotation measuring 0 to 60 degrees, and internal rotation measuring 0 to 80 degrees. A March 2017 C&P examination revealed that the Veteran's left shoulder flexion measured 0 to 140 degrees; his abduction measured 0 to 140 degrees; his external rotation measured 0 to 60 degrees; and his internal rotation measured 0 to 65 degrees. The Veteran exhibited pain on all four measurements. The Veteran suffered from less movement than normal, as well as weakened movement, and his strength was reduced due to his condition. However, the functional loss did not rise to the next level of disability, a limitation of 25 degrees from the side. He also suffered from mechanical symptoms and frequent and recurrent episodes of dislocation. The Veteran suffered from a clavicle, scapula, acromioclavicular joint condition and dislocation of the AC joint, as well as acromioclavicular joint pathology. Considering the lay and medical evidence, the Board finds the Veteran entitled to an additional 20 percent rating under Diagnostic Code 5203 for dislocation of the clavicle or scapula. Moreover, given the Veteran's frequent dislocations and instability, the Veteran is entitled to a 30 percent rating for severe instability under Diagnostic Code 5303. Given the Veteran's range of motion, his current 20 percent rating for limitation of motion to shoulder level is appropriate. The evidence demonstrates that the Veteran suffers from no other shoulder conditions necessitating additional ratings under new diagnostic codes. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (reaffirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 20 percent under Diagnostic Code 5201 is denied. A rating of 20 percent under Diagnostic Code 5203 is granted. A rating of 30 percent under Diagnostic Code 5303 is granted. ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs