Citation Nr: 1803563 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-22 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Pittsburgh Foreign Cases Regional Office THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for right shoulder acromioclavicular joint osteoarthrosis (right shoulder disability). 2. Entitlement to a compensable initial disability rating for right knee sprain prior to November 22, 2016 and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Navy from October 1986 to March 2011. He was awarded the Navy & Marine Corps Commendation Medal and the Navy Unit Commendation (2 bronze stars). These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for the right shoulder and right knee disability and assigned a noncompensable evaluation for each. The appellant timely appealed the decision with a notice of disagreement received by VA in January 2012. The RO issued a statement of the case in May 2013, as well as a rating decision that increased the Veteran's right shoulder disability rating to 10 percent, effective April 1, 2011. The appeal was perfected with the appellant timely filing a substantive appeal in July 2013. During the pendency of the appeal, in a June 2017 rating decision the RO increased the Veteran's right knee disability rating to 10 percent, effective November 22, 2016. In his July 2013 substantive appeal, the appellant indicated that he would like to testify before a Veterans Law Judge at a local VA office. In an August 2014 letter, the Veteran was informed that he was placed on the list of persons who wanted to appear at the RO for an in-person hearing. In a written response in the same month, the Veteran withdrew his hearing request. VA sent multiple letters-dated November 2014, February 2015, September 2015, November 2015, and May 2016-indicating the Veteran has been placed on a hearing list. Following each letter from VA, the Veteran provided a written response-in January 2015, March 2017, November 2015, January 2016, and May 2016-reiterating his withdrawal of his hearing request. Based on the latest communication from the appellant, the Board finds that the July 2013 hearing request has been withdrawn and that there is no pending hearing request. The Board regrets the multiple letters from VA. FINDINGS OF FACT 1. The competent and probative evidence shows that the Veteran's range of motion of the right arm is not limited at the shoulder level, but there is actually painful motion. 2. The competent and probative evidence shows that prior to November 22, 2016, the Veteran's right knee was not manifested by limitation of motion or functional loss. 3. The competent and probative evidence shows that from November 22, 2016, the Veteran's flexion of the right leg is limited to more than 30 degrees and the Veteran's extension of the right is limited to less than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial schedular rating of 20 percent, but not higher, for the right shoulder disability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.9, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71, 4.71a (DC 5003, 5010, 5201) (2017). 2. The criteria for an initial compensable schedular rating for the right knee disability prior to November 22, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.9, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71, 4.71a (DC 5205-5213). 3. The criteria for an initial schedular rating in excess of 10 percent for the right knee disability from November 22, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.9, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71, 4.71a (DC 5003, 5205-5213). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to higher initial disability ratings for his right shoulder and right knee disabilities. After reviewing the record, the Board finds that an initial disability rating of 20 percent, but not higher, for the right shoulder disability is warranted. The Board also finds that higher initial disability ratings for the Veteran's right knee disability are not warranted. The reasons and bases for these decisions will be explained below. The Board has considered the appealed issues and decided on the matters based on the pertinent evidence. Neither the appellant nor the representative has raised any issues with respect to VA's duties, and no other issues been reasonably raised by the record with respect to VA's duties. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Given the above, the Board will proceed to the merits of this appeal. I. Legal Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. pt. 4. The percentage ratings are based on the average earning capacity impairment 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. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial disability rating assigned after a grant of service connection, the evidence since the effective date of the award must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct periods during the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 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. The Veteran is competent to report symptoms and experiences observable by the senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 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, which pertain to functional impairment. The U.S. Court of Appeals for Veterans Claims 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, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. See 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. II. Right Shoulder Disability A. Rating Criteria The Veteran's right shoulder disability has been evaluated under diagnostic codes 5003 and 5010 of 38 C.F.R. § 4.71a; a 10 percent rating is in effect. Pursuant to diagnostic code 5010, a Veteran with arthritis, due to trauma and substantiated by X-ray findings, shall be rated under diagnostic code 5003 for degenerative arthritis (hypertrophic or osteoarthritis). Pursuant to diagnostic code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. Id. § 4.71a (DC 5003). Diagnostic code 5201 of 38 C.F.R. § 4.71a outlines the diagnostic codes for limitation of arm motion. A 20 percent rating is warranted for limitation of arm motion at the shoulder level; 30 percent if limited to midway between the side and shoulder level; and 40 percent if limited to 25 degrees from the side. Id. § 4.71a (DC 5201). Painful motion is an important factor of disability; the facial expression, wincing, and other expressions, on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. 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. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. § 4.59. B. Analysis Turning to the evidence of record, several private medical records from 2011 and 2012 indicate the Veteran has been complaining of right shoulder pain and that he has been taking medications for it. A November 2011 physical therapy initial examination records flexion and abduction ranges to 175 degrees. A December 2011 examination from a private clinic indicates a range of motion of approximately 180 degrees with moderate pain. He had an MRI of the rotator cuff completed in November 2011. 04/22/2013 Legacy Content Manager Documents (LCMD), Medical Treatment Record - Non-Government Facility (two files). At a February 2013 VA examination, the Veteran reported flare-ups impacting the function of his right shoulder. In this regard, the Veteran reported daily flare-ups of pain in his right shoulder aggravated by reaching, pulling or lifting with his right arm. He described the pain as sharp located anterior right shoulder. On physical examination, his flexion motion was limited to 150 degrees, with evidence of painful motion at 130 degrees. Abduction was limited to 125 degrees, with evidence of painful motion at 115 degrees. The Veteran exhibited additional functional loss and limitations in ranges of motion following repetitive-use testing; there was weakened, less movement than normal with flexion limited to 140 degrees and abduction limited to 120 degrees. A diagnosis of degenerative arthritis (osteoarthritis) was confirmed by image studies. 02/12/2013 LCMD, C&P Exam (APPEAL), at 25-36. A June 2013 private treatment report indicates that the Veteran had shoulder pain that was inhibiting his normal daily activities, to include having trouble lifting items over his head. Had constant pain at 8/10 level. Examination of the right shoulder revealed active forward flexion to 170 degrees, active external rotation to 60 degrees, and active internal oration posteriorly to mid-lumbar spine. His strength was within normal limits and he had no swelling erythema or ecchymosis. In April 2014, the Veteran underwent a compensation and pension examination. He reported flare-ups with his range of motion limited secondary to pain, with an estimated loss of 15-20 degrees. He had weakness, but no history of incoordination. His flexion was limited to 100 degrees, with pain at 30 degrees. His abduction was limited to 85 degrees, with pain at 30 degrees. Following repetitive-use testing, flexion and abduction were each limited to 90 degrees. There was no additional limitation in ROM of the shoulder and arm following repetitive-use testing. Less movement than normal, weakened movement, and pain on movement were contributing factors to his functional loss. 04/01/2014 LCMD, C&P Exam. A May 2014 disability benefits questionnaire indicates that the Veteran's flexion and abduction were limited to 170 degrees each, with pain at 170 degrees. Pain on movement was noted. He was able to perform repetitive-use testing without additional limitation in range of motion. Less movement than normal and pain on movement were contributing factors to his functional loss. 05/12/2014, C&P Exam. At a routine VA examination in October 2015, the Veteran complained of right shoulder pain when lifting above the shoulder level. He also reported right shoulder pain in November 2015. 04/06/2016 LCMD, CAPRI (two files). Having now laid out the evidence, the Board will consider the appropriate evaluation. The examinations and records noted above generally reflect that the Veteran's arm motion is not limited at shoulder height. As such, the Veteran does not meet the criteria for a 20 percent or higher evaluation under diagnostic code 5201 based on range of motion. The Board acknowledges that the April 2014 compensation and pension examination recorded the Veteran's abduction as limited to 85 degrees, with pain at 30 degrees. However, given the subsequent month's examination recording abduction limitation to 170 degrees, and two examinations prior to the April 2014 examinations reflecting arm motion not limited at shoulder height, the Board places little probative value to the April 2014 examination. However, there is actually painful motion. This is shown via his flare-ups and function loss, as discussed above. Under 38 C.F.R. § 4.59, the intention of the rating schedule is that the minimum compensable evaluation provided under the appropriate diagnostic code at issue. In this case, the lowest specified compensable evaluation for shoulder motion under diagnostic code 5201 is 20 percent. Accordingly, the Board finds that a 20 percent rating is warranted based on painful motion of the right shoulder. See Sowers v. McDonald, 27 Vet. App. 472, 478-79, 482 (2016) (stating that application of 38 C.F.R. § 4.59 warrants at least the minimum compensable rating for painful motion of a joint); see also 38 C.F.R. § 4.71a , DC 5201; Downey v. McDonald, 2016 U.S. App. Vet. Claims LEXIS 1997, *9 (Dec. 28, 2016 ) (nonprecedential Memorandum Decision) (recognizing that 20 percent is the minimum compensable rating based on application of 38 C.F.R. § 4.59 to Diagnostic Code 5201) (citing Sowers, 27 Vet. App. at 482). III. Right Knee Disability A. Rating Criteria The Veteran's right knee disability has been rated under diagnostic codes 5003 and 5260 of 38 C.F.R. § 4.71a; a noncompensable evaluation is in effect prior to November 22, 2016 and a 10 percent rating is in effect thereafter. The Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71 (plate II). Diagnostic codes 5260 and 5261 provide for ratings based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is noncompensable; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. Id. § 4.71a (DC 5260). Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 5 degrees is noncompensable; extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. Id. § 4.71a (DC 5261). The VA General Counsel has held that separate ratings under diagnostic codes 5260 and 5261 may be assigned for disability of the same joint. DVA Op. Gen. C. Prec. 9-04 (Sept. 17, 2004). The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (DC 5257). The rating schedule also provides compensable evaluations for ankylosis, dislocated semilunar cartilage, symptomatic removal of the semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum. Id. § 4.71a (DC 5256, 5258-5259, 5262-5263). The Veteran was also assessed with degenerative joint disease in the right knee. As discussed above, pursuant to diagnostic code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. Id. § 4.71a (DC 5003). B. Analysis Turning to the evidence of record, a compensation and pension examination conducted in January 2011 notes no pain on palpation, with flexion limited to 135 degrees and no limitation of extension (to 0 degrees). Repetitive motion showed the same results and there was no increased pain, weakness, fatigability, or limitation of function. Additionally, there was no evidence of medial or lateral instability by varus/valgus test or evidence of anterior/posterior intabiivlay by the Lachman or drawer tests. McMurray test was negative. X-ray results gave an impression of no radiographic evidence of acute osseous abnormality, and no significant degenerative changes were observed. The Veteran was diagnosed with a right knee sprain. 03/09/2011 LCMD, C&P Exam, at 12-19. A May 2011 VA primary care note indicates that the Veteran has chronic right knee pain. He was assessed with degenerative joint disease in the right knee. 04/06/2016 LCMD, CAPRI, at 224. The Veteran underwent a VA examination for his knee in February 2013. He reported daily flare-ups with pain in the morning. He added that he cannot play basketball anymore. The examiner diagnosed knee sprain and chondromalacia patella. There was no limitation of flexion or extension and no objective evidence of painful motion. Repetitive motion showed the same results. No functional loss, functional impairment, or additional limitation of range of motion was noted. Pain to palpation was noted. X-rays were negative. Id. at 110-15. In a February 2013 VA examination for traumatic brain injury, the Veteran indicated taking medication for right knee pain. Id. at 185. A disability benefits questionnaire was completed in March 2016. The Veteran was diagnosed with recurrent right knee sprain, with no documented degenerative or traumatic arthritis. The Veteran reported continued intermittent right knee pain since an injury in 2008. No flare-ups were reported. The examination notes no pain and no evidence of pain with weight bearing, but there was objective evidence of localized, mild tenderness or pain on palpation of the patella. Flexion was limited to 125 degrees and there was no limitation of extension. Repetitive testing yielded the same results. Joint stability testing reflects normal results for the right knee. 03/15/2016, C&P Exam. X-ray results from January 2017 provide an impression of spur formation and right intercondylar eminence. Diagnosis was "minor abnormality." 03/29/2017, C&P Exam, at 11-12. Finally, in a March 2017 disability benefits questionnaire, the diagnoses associated with the right knee were knee strain, knee joint osteoarthritis, and patellofemoral pain syndrome. Flexion was limited to 100 degrees and there was no limitation in leg extension. The ranges of motion measurements were the same after repetitive testing. Active range of motion movements were painful. There was pain on movement, atrophy of disuse, and disturbance of locomotion. The right knee had pain when used in weight bearing or non-weight bearing with some functional loss. There was no history of recurrent subluxation, lateral instability, or effusion regarding the right knee. Id. at 1-10. Having now laid out the evidence, the Board will consider the appropriate evaluation. 1. Period prior to November 22, 2016. With respect to the period prior to November 22, 2016, the evidence does not reflect limitations in flexion or extension that would warrant a compensable evaluation under diagnostic codes 5260 or 5261. The January 2011 compensation and pension examination shows flexion limited to 135 degrees and no limitation of extension. Similarly, the February 2013 VA examination reflects no limitation of flexion or extension. The March 2016 disability benefits questionnaire shows that flexion was limited to 125 degrees and that there was no limitation of extension. In finding that a compensable evaluation is not warranted prior to November 22, 2016, the Board has considered the Veteran's subjective complaints, as well as whether there is additional functional loss due to lack of endurance and pain on movement per 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 202. The finding of the examinations conducted in January 2011 and March 2016 do not reflect evidence of painful motion. As such, the Board finds that the evidence weighs against a higher rating on the basis of §§ 4.40, 4.45, and/or 4.59. The record reflects pain on palpation and that the Veteran has complained of pain. However, the Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 38. Rather, pain must affect the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance" in order to constitute functional loss. Id. (quoting 38 C.F.R. § 4.40). In this regard, the March 2011 VA examination report reflect that repetitive motion showed the same results and there was no increased pain, weakness, fatigability, or limitation of function. Additionally, the March 2016 VA examination report reflects no functional loss, functional impairment or additional limitation of ROM of the knee and lower leg after repetitive use. 2. Period from November 22, 2016. With respect to the period from November 22, 2016, the Veteran has been assigned a 10 percent evaluation. The evidence does not reflect limitations in flexion or extension that warrant a higher evaluation under diagnostic codes 5260 or 5261. A 20 percent evaluation is warranted for limitation of flexion to 30 degrees or limitation of extension to 15 degrees. 38 C.F.R. § 4.71a (DC 5260-5261). The May 2017 disability benefits questionnaire, however, shows flexion limited to 100 degrees and no limitation in leg extension. Moreover, in consideration of the DeLuca factors, while it is clear that the Veteran experiences pain on movement, the disability rating in effect takes into consideration the Veteran's functional loss associated with his right knee disability. The Board finds that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not provide a basis for higher ratings. With regard to the other potentially applicable rating codes for the entire period on appeal, the record does not reflect evidence of ankylosis, recurrent subluxation or lateral instability of the knee, dislocated semilunar cartilage, symptomatic removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. As such, these diagnostic codes are not available for a higher and/or separate rating. ORDER An initial disability rating of 20 percent, but no higher, for the right shoulder disability, is granted. A compensable initial disability rating for the right knee disability prior to November 22, 2016 is denied. An initial disability rating in excess of 10 percent for the right knee disability from November 22, 2016 is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs