Citation Nr: 1752028 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-03 279A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating in excess of 20 percent for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD The Veteran INTRODUCTION The Veteran had active service in the United States Navy from March 1989 to March 2009. This matter is before the Board of Veterans' Appeals, hereinafter the Board, on appeal from an October 2013 rating decision. The issue on appeal was previously remanded in February 2015. FINDING OF FACT For the entire increased rating period on appeal, the Veteran's right shoulder disability, in consideration of pain and functional loss, more nearly approximates limitation of motion to midway between side and shoulder level, but not limited to 25 degrees from the side. CONCLUSION OF LAW The criteria for an increased rating of 30 percent, but no higher, for the right shoulder disability have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5201, 5202, 5203 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In this case, neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Laws and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). 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 will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2017). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that her right shoulder disability has worsened and that a higher rating in excess of 20 percent is warranted. In considering whether a higher disability rating is warranted, the Board has carefully considered the Veteran and her representative's statements asserting that her disability is of such a severity so as to warrant a higher evaluation. In this case, the Veteran's right shoulder disability is rated as 20 percent disabling under Diagnostic Code 5201. The provisions of 38 C.F.R. § 4.71a expressly provide for the application of different rating criteria depending upon whether a veteran's minor (non-dominant) or major (dominant) side is being evaluated. See 38 C.F.R. § 4.69 (2012). The Veteran in this case is right-hand dominant; therefore, her right shoulder disability affects the major, dominant side. Diagnostic Code 5201, which refers to limitation of motion of the arm awards a 40 percent rating (major arm) when motion is limited to 25 degrees from the side. A 30 percent is warranted for limitation of motion midway between side and shoulder level. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5202, a 20 percent evaluation for the minor arm may be granted for four different conditions: (1) malunion of the humerus with moderate deformity; (2) malunion of the humerus with marked deformity; (3) recurrent dislocations of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level; and (4) recurrent dislocations of the scapulo-humeral joint with frequent episodes and guarding of all arm movements. A 40 percent rating is warranted for the minor extremity when there is fibrous union of the humerus, a 50 percent rating is warranted when there is nonunion (false flail joint) of the humerus and a 70 percent rating is warranted when there is loss of head (flail shoulder) of the humerus. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Diagnostic Code 5203 provides that malunion of the clavicle or scapula may be assigned a 10 percent rating, or may be rated based on impairment of function of the contiguous joint. Nonunion of the clavicle or scapula without loose movement warrants a 10 percent evaluation. Nonunion of the clavicle or scapula with loose movement shall be assigned a 20 percent rating. In cases of clavicular or scapular impairment, with dislocation, a 20 percent rating is warranted where either the major or minor arm is involved. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. 202. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The evidence includes an April 2013 VA shoulder examination (located in Virtual VA). During the evaluation, the Veteran reported that she could not turn her shoulder to reach behind her or hold her purse on her shoulder. She denied flare-ups. Upon examination, the Veteran had forward flexion of the right shoulder to 100 degrees with pain at 90 degrees. Abduction was limited to 75 degrees with pain at 75 degrees. There was no additional limitation of motion in flexion or abduction following repetitive use. Muscle strength was a 4/5 in flexion and abduction. There was no ankylosis of the right shoulder. The empty-can test was positive. The evidence also includes a December 2015 VA orthopedic consult note where the Veteran reported difficulty lifting, carrying, brushing hair, and showering. Upon range of motion testing of the right shoulder forward flexion was limited to 90 degrees and abduction was limited to 60 degrees. The Veteran was afforded another VA examination in March 2017. During the evaluation, the Veteran reported pain while driving and sleeping. Exercise, lifting, and daily activities (such as getting dressed) were noted to be limited. She specifically indicated that she could not lift her arm over her hear or behind her back. Upon examination, the Veteran had forward flexion of the right shoulder to 100 degrees with pain at 90 degrees. Abduction was limited to 60 degrees and abduction to 80 degrees. The examiner noted that the Veteran could not use the arm overhead. There was no additional functional loss or range of motion after three repetitions. Muscle strength was a 4/5 in flexion and abduction. The examiner also indicated that the Veteran had a positive crank apprehension and relocation test, indicative of right scheduler instability. After reviewing radiological findings, the examiner indicated that the Veteran had significant distal supraspinatus tendinopathy with partial tearing and there was "concern for a superior labral tear. Upon review of all the evidence of record, the Board finds that for the entire appeal period, the objective evidence shows objectively measured limitation of motion of the right shoulder of at worse limited to 60 degrees when considering pain on motion. See March 20017 VA examination report. Further, there is no indication that the Veteran's motion of the right shoulder has consistently reached shoulder level (90 degrees). See April 2013 VA examination (limited to 75 degrees in flexion); see December 2015 VA treatment record (abduction limited to 60 degrees); see also March 2017 (limited to 60 degrees in flexion). Therefore, because there is a question of whether the Veteran's right shoulder has motion limited to shoulder level (90 degrees) or motion limited to midway between side and shoulder level (45 degrees), the Board finds that the Veteran's right shoulder motion more nearly approximates the degree of impairment provided by the higher rating, namely limitation of motion midway between side and shoulder level (45 degrees). There is no measured additional functional limitation from the Deluca factors, including weakness, fatigability, stiffness, or incoordination, even with repetitive motion and use. Accordingly, the measured functional impairment of the right shoulder's motion, to include consideration of the impact of the DeLuca factors, was shown to be at worse limited to midway between side and shoulder level and therefore the criteria for a 30 percent rating under DC 5201 are more nearly approximated for the entire appeal period. However, given that measured range of motion limited to 25 degrees from the side is not shown, even when considering the DeLuca factors, the criteria for a rating greater than 30 percent are not met or approximated during the appeal period. For these reasons, an increased disability rating of 30 percent, but no higher, for the right shoulder disability is warranted for the entire appeal period under DC 5201. Moreover, the Veteran's shoulder does not demonstrate ankylosis of scapulohumeral articulation (Diagnostic Code 5200). There is also no objective evidence of fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder)(Diagnostic Code 5202). 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. Additionally, because 20 percent is the maximum rating available for impairment of the clavicle or scapula under Diagnostic Code 5203, a higher rating under Diagnostic Code 5203 is not possible. The Board also finds that no higher evaluations can be assigned pursuant to any other potentially applicable diagnostic codes. For these reasons, the Board finds that a 30 percent rating, but no higher, for the Veteran's right shoulder disability is warranted for the entire increased rating period on appeal. Finally, the Board notes that neither the Veteran nor her 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, 69-70 (2017). ORDER A 30 percent rating for the right shoulder disability is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs