Citation Nr: 1754963 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-27 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial compensable evaluation for left upper extremity long thoracic neuropathy, prior to July 20, 2012. 2. Entitlement to an evaluation in excess of 20 percent for left upper extremity long thoracic neuropathy, since July 20, 2012. 3. Entitlement to an evaluation in excess of 20 percent for left shoulder status post arthroscopic labral debridement with residual loss of motion. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from November 2003 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Board remanded this matter for additional evidentiary development. FINDINGS OF FACT 1. Prior to July 20, 2012, the Veteran's left (minor) upper extremity long thoracic neuropathy was manifested by no more than mild incomplete paralysis of the long thoracic nerve. 2. Since July 20, 2012, the Veteran's left (minor) upper extremity long thoracic neuropathy has been manifested by no more than severe incomplete paralysis of the long thoracic nerve; a disability rating for complete paralysis of the long thoracic nerve would constitute impermissible pyramiding and is precluded by law. 3. Throughout the entire period on appeal, the Veteran's left (minor) shoulder status post arthroscopic labral debridement with residual loss of motion has been manifested by complaints of pain, and the ability to move the left arm in excess of to at least 45 degrees in abduction and flexion. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for left upper extremity long thoracic neuropathy, prior to July 20, 2012, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.124a, Diagnostic Code 8519 (2017). 2. The criteria for an evaluation in excess of 20 percent for left upper extremity long thoracic neuropathy, since July 20, 2012, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.124a, Diagnostic Code 8519 (2017). 3. The criteria for an evaluation in excess of 20 percent for left shoulder status post arthroscopic labral debridement with residual loss of motion have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has raised no 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). The Board also finds there has been substantial compliance with its January 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The Veteran is seeking increased evaluations for his service-connected left upper extremity long thoracic neuropathy and his left shoulder status post arthroscopic labral debridement with residual loss of motion. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. 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). For conditions that are not specifically listed in the Schedule, VA regulations provide that those conditions may be rated by analogy under the Diagnostic Code for "a closely related disease or injury." 38 C.F.R. § 4.20 (2017); see 38 C.F.R. § 4.27 ("When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, . . . ." (emphasis added)). Where, however, a condition is listed in the schedule, rating by analogy is not appropriate. In other words, "[a]n analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'" Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (emphasis added). A. Left Upper Extremity Long Thoracic Neuropathy The Veteran's left upper extremity long thoracic neuropathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8519, which pertains to the long thoracic nerve. Diagnostic Code 8519 provides a noncompensable rating for mild incomplete paralysis of the nerve; a 10 percent rating for moderate incomplete paralysis; a 20 percent rating for severe incomplete paralysis; and a 20 percent rating for complete paralysis of the nerve of the minor extremity (30 percent for major extremity) with inability to raise arm above shoulder level and winged scapula deformity. Id. A Note to the Diagnostic Code unequivocally states that ratings under this Code are not to be combined with lost motion above shoulder level. Words such as "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. i. Prior to July 2012 Based upon a longitudinal review of the record, the Board concludes that prior to July 20, 2012, the Veteran's left (minor) upper extremity long thoracic neuropathy was manifested by no more than mild incomplete paralysis of the long thoracic nerve. Electrodiagnostic testing performed in August 2009 did not reveal any evidence of suprascapular nerve palsy or cervical radiculopathy. Left medial and ulnar nerve motor and sensory nerve conduction studies were within normal limits, as was the Veteran's suprascapular nerve response. A September 2009 VA examination for peripheral nerves noted the Veteran's complaints of left (minor) shoulder blade and subscapular pain, along with numbness at the left fourth and fifth palmar and dorsal areas. The examiner noted the Veteran is right hand dominant. Physical examination revealed no gross motor or sensory deficit in the left upper extremity, and no other neurological symptoms in the left upper extremity, including the hands and digits. The examination report concluded with a diagnosis of left long thoracic nerve injury, mild and recovered. An April 2010 EMG revealed an impression of long thoracic nerve injury, left. A July 2010 MRI examination of the left shoulder revealed a possible nondisplaced posterior labral tear. The preponderance of the evidence is against an increased evaluation for the Veteran's left (minor) upper extremity long thoracic neuropathy, prior to July 20, 2012, and it must be denied. There is no basis for assigning a staged rating. ii. Since July 20, 2012 Since July 20, 2012, the RO has assigned the Veteran's left upper extremity long thoracic neuropathy a 20 percent disability evaluation. Throughout this appeal, the RO has also assigned the Veteran's left shoulder status post arthroscopic labral debridement with residual loss of motion a 20 percent disability rating pursuant to Diagnostic Code 5201, based on limitation of motion of the left arm. 38 C.F.R. § 4.71a. VA regulations prohibit the separate evaluations for the same disability manifestations, what is commonly called pyramiding. See 38 C.F.R. § 4.14 (noting that, while various manifestations of a single disability may be assigned separate ratings, VA regulations preclude the evaluation of the same disability manifestations under different diagnoses, a process called pyramiding). Since July 20, 2012, the Veteran's left (minor) upper extremity long thoracic neuropathy has been manifested by no more than severe incomplete paralysis of the long thoracic nerve. A July 20, 2012, VA examination of the left shoulder noted his complaints of numbness, burning, and tingling in his left arm and hand. He reported that the left arm fatigues immediately with any use and he cannot lift it or reach for things with it. He reports loss of grip strength on the left and his mother says he is dropping things more often. The Veteran's most recent VA examination for peripheral nerve conditions, performed in July 2017, noted his complaints of severe constant pain, paresthesia, and numbness of the left upper extremity. Muscle strength testing was normal, and no muscle atrophy was found. Deep tendon reflexes were all normal, and sensory examination revealed decrease sensation in the left hand and fingers. Testing of the median, radial and ulnar nerves was normal, as was testing of the left long thoracic nerve. The VA examiner further noted that the Veteran's left upper extremity long thoracic neuropathy was quiescent. The VA examiner in July 2017 opined that the limitation of motion exhibited in the Veteran's left arm was not due to his neurological condition, but was instead due to pain from his left shoulder disability, status post arthroscopic labral debridement with residual loss of motion. Since July 20, 2012, the Veteran's left upper extremity long thoracic neuropathy has been manifested by no more than severe incomplete paralysis of the long thoracic nerve. The evidence does not show and the evidence does not more nearly approximate complete paralysis of the long thoracic nerve, which would still only warrant a 20 percent disability evaluation pursuant to Diagnostic Code 8519, as the Veteran's service connected disability affects his nondominant (minor) arm. In sum, a rating in excess of 20 percent for left upper extremity long thoracic neuropathy, since July 20, 2012, is denied. B. Left Shoulder Status Post Arthroscopic Labral Debridement with Residual Loss of Motion Throughout this appeal, the RO has evaluated the Veteran's left shoulder status post arthroscopic labral debridement with residual loss of motion as 20 percent disabling pursuant to Diagnostic Code 5201. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 is used in rating limitation of motion of the arm. Normal ranges of upper extremity motion are defined by VA regulations as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; internal and external rotation to 90 degrees; and finally, lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71a, Plate I (2017). Pursuant to Diagnostic Code 5201, limitation of motion of the upper extremity at shoulder level warrants a 20 percent disability rating for both major and minor sides. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A 20 percent disability rating is warranted for limitation of the motion of the minor extremity midway between the side and shoulder level. Id. A maximum schedular 30 percent disability rating is warranted for limitation of motion of the minor arm to 25 degrees from the side. Id. Following a longitudinal review of the record, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to an increased disability rating in excess of 20 percent for his limitation of motion in the left shoulder. With respect to medical evidence, the Board has reviewed the Veteran's VA examination reports, VA treatment records, and private treatment records. Throughout the entire period on appeal, the Veteran's left (minor) shoulder status post arthroscopic labral debridement with residual loss of motion has been manifested by complaints of pain, and the ability to move his left arm to at least 45 degrees in abduction and flexion. The Veteran's most recent VA examination for shoulder disorders, performed in July 2017, noted a range of motion in the left shoulder consisting of flexion and abduction to 90 degrees. Motor strength testing of the left shoulder was 5/5 in both forward flexion and abduction, and there was no evidence of muscle atrophy shown. Although there was evidence of pain on weight bearing, the range of motion exhibited in his left shoulder was not reduced after repetitive use testing. Moreover, the range of motion exhibited by the left shoulder is far in excess of the limitation of motion down to 25 degrees which is required for an increased evaluation in this matter. On his September 2009 VA joints examination, the Veteran's left shoulder exhibited a range of motion consisting of forward flexion to 90 degrees with mild pain experienced at 90 degrees, and abduction to 85 degrees, with mild pain experienced at 90 degrees. Upon repetitive use testing, his pain level increased from mild to moderate, and range of motion was reduced, with forward flexion to 80 degrees and abduction to 70 degrees. The report noted that the Veteran refused to be tested in external and internal rotation. The report concluded with diagnoses of status post arthroscopic procedure for partial tear, left labrum, with residual symptoms, chronic pain and limitation of movement of the left shoulder joint. The United States Court of Appeals for Veterans Claims (Court) has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examination reports include range of motion testing for pain on both active and passive motion and weight-bearing and nonweight-bearing, and if possible, with range of motion of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016) (quoting 38 C.F.R. § 4.59 (2016)). Pursuant to the Board's January 2017 remand, a VA examiner in July 2017 opined that it was not possible to determine the historical severity of the Veteran's range of motion testing on both active and passive motion and in weight-bearing and nonweight bearing. In support of this opinion, the VA examiner noted that such previous examinations are subject to significant variability over time based on possible exacerbation and decreased severity of symptomatology, both subjectively and objectively. When considering the pertinent evidence of record, the Board finds that the level of impairment that is demonstrated in this case reflects motion of the Veteran's left arm limited to no less than midway between the side and shoulder level, or 45 degrees, to warrant a 20 percent evaluation under Diagnostic Code 5201. The Board notes that functional loss of the musculoskeletal system may be due to pain, supported by adequate pathology and evidence by visible behavior of the claimant undertaking the motion. See DeLuca at 202 (1995); 38 C.F.R. § 4.40. However, pain alone does not warrant a higher rating. See Mitchell, 25 Vet. App. 32. The Veteran's complaint of left shoulder pain did not result in functional loss sufficient to produce a higher rating. Thus, even considering the Veteran's subjective complaints of pain, the medical evidence of record does not support any additional limitation of motion in response to repetitive motion that would support an evaluation in excess of the 20 percent assigned for all periods on appeal. Finally, the Board has considered whether there may be any other relevant Diagnostic Code that would allow for a higher disability rating throughout the appeal period. However, there is no evidence of ankylosis of the scapulohumeral articulation, nor impairment such as nonunion, malunion or recurrent dislocation, of the humerus, clavicle and/or scapula, to warrant consideration under Diagnostic Codes 5200, 5202, 5203. The Veteran is competent to report on symptoms and credible in his belief that he is entitled to a higher rating. His competent and credible lay evidence, however, is outweighed by competent medical evidence that evaluates the extent of the shoulder impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Additionally, 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) (confirming 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). In sum, the weight of the evidence demonstrates that the Veteran's left shoulder disability did not warrant ratings in excess of those assigned under the relevant diagnostic codes for the periods under consideration. As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial compensable evaluation for left upper extremity long thoracic neuropathy, prior to July 20, 2012, is denied. An evaluation in excess of 20 percent for left upper extremity long thoracic neuropathy, since July 20, 2012, is denied. An evaluation in excess of 20 percent for left shoulder status post arthroscopic labral debridement with residual loss of motion is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs