Citation Nr: 1802377 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-31 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a compensable evaluation for right shoulder disability, characterized as a strain. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. E. Griffith, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1998 to February 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(7) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran does not have limitation of range of motion at the shoulder level or functional loss of the right shoulder, but he has mild arthritis involving 2 or more major joints. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for the right shoulder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.59, 4.71a, Diagnostic Code (DC) 5201, 5003 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Procedural duties Neither the Veteran nor his representative has raised any issues with respect to 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). Increased rating The Veteran contends that his right shoulder disability should be rated higher than the rating assigned by the AOJ. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). It is, however, VA's policy to grant at least the minimal compensable rating for arthritis with actually painful motion. 38 C.F.R. § 4.59. Further, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board notes that although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). The Veteran's right shoulder has been rated as noncompensable under Diagnostic Code (DC) 5201 for limitation of arm motion. VA received the Veteran's claim for increase in March 2016. His right shoulder has been rated as noncompensable throughout the appeal period. Diagnostic Code 5201 provides for a 20 percent rating for limitation of major arm motion at the shoulder level, a 30 percent rating for limitation of the major arm to midway between the side and shoulder level, and a maximum, 40 percent rating for limitation of the major arm to 25 degrees from the side. 38 C.F.R. § 4.71a. Plate I shows that normal shoulder flexion and abduction are to 180 degrees and shoulder height is 90 degrees. Diagnostic Code 5202 provides for ratings if there is loss of head, nonunion, or fibrous union of the humerus, described as deformity, flail shoulder, and dislocation. Diagnostic Code 5203 provides for ratings for impairment of the clavicle or scapula. Diagnostic Code 5200 addresses ankylosis in the joint. Diagnostic Code 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. The Veteran is competent to report symptoms and experiences observable by his senses, but not to assess range of motion, as this requires specialized training. See 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In his application for an increased rating in March 2016, the Veteran alleged his shoulder had worsened and that an increase in compensation rating is appropriate. In his substantive appeal, received in June 2017, the Veteran contended that a May 2016 MRI was not properly considered and that this puts his right shoulder the same or similar diagnosis as his service-connected left shoulder (which is rated as 10 percent disabling due to x-ray evidence of degenerative arthritis with limited motion of the joint). The Veteran underwent a VA examination in April 2016 that included range of motion testing of the Veteran's right shoulder. The Veteran had slightly reduced range of motion of flexion from 0 to 175 degrees and abduction of 0 to 160 degrees. The Veteran's external and internal rotations were normal at 0 to 90 degrees. There was no pain noted on the exam, nor was there evidence of pain with weight bearing. There was no objective evidence of localized tenderness, pain on palpation of the joint or associated soft tissue, crepitus, or ankylosis. The Veteran was able to perform repetitive use testing with at least 3 repetitions and had no additional functional loss. The report also reflects that the right shoulder was examined after repetitive use over time and he was not limited in functional ability by pain, weakness, fatigability or incoordination. Finally, the Veteran did not report flare-ups of the shoulder. A May 2016 counseling record from VA's vocational rehabilitation service indicates that his function limitation for limited motion of the arm cause loss of motion and stiffness, which can limit lifting abilities, limitation in motion, and restriction of physical activities. It further notes that the Veteran has been working in temperature controlled environments with limited physical exertion. Additionally, the Veteran underwent an MRI in May 2016, which showed mild arthritis changes in the right glenohumeral joint. The Board notes that with the May 2016 MRI, the Veteran now has diagnostic evidence of arthritis in both shoulders. Under Diagnostic Code 5003, a 10 percent rating is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. The Board notes that the May 2016 rating decision awarded a 10 percent evaluation for the Veteran's service-connected left shoulder based on such x-ray evidence. A compensable rating was denied for the right shoulder based on limited motion of the arm above shoulder level. However, diagnostic evidence of arthritis was not of record this MRI report was not added until June 2017 (after the April 2016 VA examination and April 2017 statement of the case). As such, the Board finds a 10 percent rating is also warranted for the Veteran's right shoulder with mild arthritis. The record does not reflect any exacerbating episodes. See, e.g., April 2016 VA examination report. The Board acknowledges a March 2016 VA orthopedic surgery consult notes that the Veteran has complained of shoulder pain for 20+ years. However, the finds that the preponderance of the evidence regarding the impairment of the right shoulder does not meet the criteria for a rating in excess of 10 percent because the Veteran's range of motion is above shoulder level. Additionally, the Board finds that the Veteran's musculoskeletal disability does not cause additional functional loss or reduction of the right shoulder's normal excursion of movement in different planes. 38 C.F.R. §§ 4.40, 4.45 (2017); see Mitchell, 25 Vet. App. at 36-37; DeLuca, 8 Vet. App. at 205-07. In this regard, the April 2016 VA examination report reflects that the Veteran was able to perform repetitive use testing with at least 3 repetitions and had no additional functional loss. The report also reflects that the right shoulder was examined after repetitive use over time and he was not limited in functional ability by pain, weakness, fatigability or incoordination. The Board also finds that the evidence weighs against a finding of an actually painful, unstable, or malaligned right shoulder joint. The Board finds that the Veteran's report of pain for 20 years is outweighed by competent evidence collected on VA examination in 2016 showing no pain on motion as such was recorded by a competent medical professional employing objective testing technics. Based on the foregoing, the Veteran's right shoulder disability meets the criteria for a compensable 10 percent rating, but no higher. See 38 C.F.R. § 4.71a, DC 5201-5003. ORDER A 10 percent rating, but no higher, for a right shoulder disability, is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs