Citation Nr: 1804243 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 13-05 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a disability rating in excess of 20 percent for status post left shoulder strain with chronic multi-directional instability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO reduced the Veteran's disability rating for status post left shoulder strain with chronic multi-directional instability from 20 percent to noncompensable, effective September 1, 2009. A September 2013 Board decision found the June 2009 rating reduction improper and voided the rating reduction, granting a restoration of the 20 percent rating. The Board then remanded the issue of a rating in excess of 20 percent for the Veteran's left shoulder. In April 2016, the issue was again remanded in order to give the Veteran the opportunity for a Board hearing. In March 2017, the Veteran testified during a videoconference hearing before the undersigned. A transcript of that hearing is of record. FINDING OF FACT The Veteran's status post left shoulder strain with chronic multi-directional instability is primarily manifested by dislocation of the minor upper extremity clavicle or scapula. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for status post left shoulder strain with chronic multi-directional instability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5200-5203 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) Initially, the Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to address his claim for entitlement to a disability rating in excess of 20 percent for status post left shoulder strain with chronic multi-directional instability. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2017). Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dingess v. Nicholson, 19 Vet. App. 473 (2006). II. Increased Ratings The Veteran is appealing the original assignment of disability evaluation. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). When determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on any functional loss of use of the affected part. Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on 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. The factors of joint disability include more movement than normal, less movement than normal, weakened movement, incoordination, excess fatigability, painful movement, swelling, deformity, or disuse atrophy. 38 C.F.R. § 4.45. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes pertaining to limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. §§ 4.40 and 4.45. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's status post left shoulder strain with chronic multi-directional instability has been evaluated under Diagnostic Code 5203. This disability is not specifically listed in the rating schedule, therefore it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related The shoulder joint is considered a major joint. See 38 C.F.R. § 4.45(f). The Board notes that the Veteran is right-handed, so his left shoulder disability affects his minor upper extremity. 38 C.F.R. § 4.69. Shoulder disabilities are rated under Codes 5200 to 5203. Diagnostic Code 5200 pertains to ankylosis of the scapulohumeral articulation (Note: the scapula and the humerus move as one piece). As the Veteran is not shown to have ankylosis of the shoulder, Code 5200 does not apply. Diagnostic Code 5201 pertains to limitation of motion of the arm. Under Diagnostic Code 5201, a 30 percent rating is warranted when range of motion of the minor upper extremity is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under Diagnostic Code 5202, which pertains to impairment of the humerus, a 40 percent rating is warranted for a fibrous union of the humerus in the minor upper extremity. A 50 percent rating is warranted when there is nonunion of the humerus (false flail joint) in the minor upper extremity. A maximum disability rating of 70 percent is warranted when there is loss of humerus head (flail shoulder) in the minor upper extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5202. The Veteran has reached a maximum disability rating of 20 percent under Diagnostic Code 5203, as he has shown dislocation of the minor upper extremity clavicle or scapula. 38 C.F.R. § 4.71a, Diagnostic Code 5203. The Veteran's service treatment records show that he complained of left shoulder pain in September 2003 and was shown to have limited range of motion and instability of the left shoulder on physical examination. An MRI showed a possible labral tear. A review of the record, including post-service medical treatment records, shows that the Veteran has received periodic treatment for his left shoulder condition. In April 2009, he was diagnosed with chronic subluxation of the left shoulder and left shoulder instability with likely posterior subluxation. An MRI showed mild rotator cuff tendinopathy, but no rotator cuff tear. A March 2009 VA examination diagnosed the Veteran with left shoulder strain with residual pain. On physical examination, the Veteran's left shoulder showed crepitus of the acromioclavicular joint with passive and active range of motion, however he had no pain, clicking or popping, and no other bone abnormalities. He had full range of motion on flexion, abduction, and rotation with no complaints of pain. He also had no pain, incoordination, instability, weakness, or easy fatigability on repetitive range of motion tests. The Veteran had no flare-ups, limiting forces, muscle atrophy, weakness, paralysis, contracture, girdle involvement, or chronic multidirectional instability. He underwent a normal x-ray of left shoulder. He also noted that the Veteran had worked full-time as an operator at a masonry company since his discharge from the military. The Veteran admitted that his condition did not interfere with his ability to perform his job. An October 2013 VA examination indicated that the Veteran's left shoulder strain/sprain and multidirectional instability had resolved without residuals or sequelae. The examiner reported that the Veteran had normal range of motion to the bilateral shoulders, with no atrophy on the left side, no history of recurrent dislocation (subluxation) of the glenohumeral joint, negative crank apprehension and relocation test, functional loss, tenderness or pain on palpation, or guarding. The Veteran also had 5/5 strength of the left shoulder with abduction and flexion. An April 2017 private examination diagnosed the Veteran with left glenohumeral joint instability. The Veteran had normal range of motion on flexion and abduction, but decreased rotation, which did not contribute to any functional loss. Instead, the examiner reported that the Veteran had frequent subluxation that impacted his ability to function daily. The Veteran was noted as having pain, but no tenderness, reduction in muscle strength, or atrophy. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for status post left shoulder strain with chronic multi-directional instability. The evidence does not show that the Veteran has range of motion of the minor upper extremity that is limited to 25 degrees from the side, fibrous union of the humerus in the minor upper extremity, intermediate between favorable and unfavorable ankylosis in the minor extremity, unfavorable ankylosis in the minor extremity with abduction limited to 25 degrees from the side, fibrous union of the humerus in the minor upper extremity, nonunion of the humerus (false flail joint) in the minor upper extremity, or loss of humerus head (flail shoulder) in the minor upper extremity. In fact, VA examiners have specifically noted that there is no ankylosis, loss of bone, or other shoulder injury. The Veteran's range of motion never approached 25 degrees. Therefore, the Veteran's symptoms of dislocation of the minor upper extremity clavicle or scapula are currently contemplated by the assigned 20 percent rating and a higher rating is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203. In addition, the Board has considered, in compliance with Deluca, the extent to which a higher rating is warranted for functional loss. The Veteran reported pain, weakness, flare-ups, frequent instability with active range of motion, and decreased functional abilities. The Board finds the Veteran's statements regarding these symptoms to be credible, especially since they are corroborated by reports in the April 2017 VA examination. However, the Board finds that the 20 percent evaluation already takes into consideration the Veteran's complaints of pain and the resulting functional impairment. Accordingly, the Board finds that a higher rating is not warranted. Lay reports regarding symptoms and history associated with status post left shoulder strain with chronic multi-directional instability have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. However, the clinical evidence offering detailed, specific, objective determinations pertinent to the rating criteria and manifestations associated with the condition, is found to be the most probative and credible evidence with regard to evaluating the pertinent symptoms. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.32. According to the regulation, an extraschedular disability rating is warranted where the case presents "such an exceptional or unusual disability picture" - considering related factors such as "marked interference with employment or frequent periods of hospitalization" - that application of the regular schedular standards is impractical. See 38 C.F.R. § 3.321 (b)(1). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular rating when the issue is raised by the claimant or reasonably raised by the evidence of record. Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016). According to Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms," generally described as marked interference with employment or frequent periods of hospitalization. "Essentially, the first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms." Yancy, 27 Vet. App. at 494. Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture demonstrates factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service, to determine whether the Veteran's disability picture requires the assignment of an extra-schedular rating. The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's service-connected status post left shoulder strain with chronic multi-directional instability is manifested by dislocation of the minor upper extremity clavicle or scapula. These manifestations are contemplated in the rating criteria and they are adequate to evaluate the disability. Furthermore, the Veteran's status post left shoulder strain with chronic multi-directional instability does not exhibit other related factors, such as marked interference with employment or frequent periods of hospitalization. The March 2009 and October 2013 VA examinations show that the Veteran had been employed full-time as a masonry operator since his discharge from service. In addition, the Veteran has not argued (and the record does not support) that his condition has resulted in frequent periods of hospitalization. Accordingly, referral to the Under Secretary for Benefits or the Director, Compensation Service, is not warranted. Finally, entitlement to a total disability based on individual unemployability (TDIU) is also an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). As previously discussed, there is no evidence that the Veteran's condition affects his current employment. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected status post left shoulder strain with chronic multi-directional instability. In sum, a 20 percent rating for service-connected status post left shoulder strain with chronic multi-directional instability is warranted. Referral for an extraschedular rating and remand of a claim for TDIU, however, are not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the assignment of any ratings higher than those currently assigned, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to a rating in excess of 20 percent for status post left shoulder strain with chronic multi-directional instability is denied. ____________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs