Citation Nr: 18140188 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 11-08 954 DATE: October 2, 2018 ORDER Entitlement to an initial rating of 30 percent, but not in excess of 30 percent, for avascular necrosis of the right shoulder is granted. Entitlement to an initial rating in excess of 20 percent for avascular necrosis of the left shoulder is denied. FINDINGS OF FACT 1. Symptoms of the Veteran’s avascular necrosis of the right (major) shoulder more nearly approximate limitation of motion to at least midway between side and shoulder level. 2. Symptoms of the Veteran’s avascular necrosis of the right (major) shoulder do not more nearly approximate ankylosis, limitation of motion to at least to 25 degrees from side, or malunion, nonunion, or dislocation of the humerus. 3. Symptoms of the Veteran’s avascular necrosis of the left (minor) shoulder more nearly approximate limitation of motion to at least midway between side and shoulder level. 4. Symptoms of the Veteran’s avascular necrosis of the left (minor) shoulder do not more nearly approximate ankylosis, limitation of motion to at least to 25 degrees from side, or malunion, nonunion, or dislocation of the humerus. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, but not in excess of 30 percent, for avascular necrosis of the right (major) shoulder have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5201 (2017). 2. The criteria for a rating in excess of 20 percent for avascular necrosis of the left (minor) shoulder have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1985 to October 1988. Increased Ratings, Generally Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, 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). Here, the Board finds that the symptoms of the Veteran’s disabilities decided on appeal have not significantly changed throughout the appeal period and that uniform ratings are warranted. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Avascular Necrosis of the Left and Right Shoulders In January 2010, the Veteran was granted service connection for avascular necrosis of the bilateral shoulders assigning separate 10 percent ratings, effective December 4, 2001. In March 2010, the Veteran disagreed with the ratings assigned for his bilateral shoulder disabilities. In June 2010, the Veteran stated that he believed “the debilitating effects of these service-connected conditions are much more severe than my assigned ratings. First, your determination was largely based upon range of motion effect and limitation that I believe was incorrectly estimated by my examiner. My degree of bone deterioration and necrotizing would preclude this degree of mobility as I know from experience. Second, my avascular necrosis has greatly decreased my strength and coordination in all four limbs causing severe limitations. The fatigue caused by my condition requires that I rest up several times a day, and my shoulder disabilities exacerbate which makes my condition completely and because of my shoulders I cannot use crutches or a walker to compensate for my hip disabilities. Lastly, the pain in my shoulders is so severe that it limits lifting, strength, endurance, and stamina. I am prescribed Percocet to be able to complete routine daily chores.” The Veteran’s avascular necrosis of the bilateral shoulders was evaluated as 20 percent disabling under hyphenated Diagnostic Code 5299-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that each of the Veteran’s unlisted musculoskeletal conditions (DC 5299) were rated under the criteria for arm, limitation of motion (DC 5201). See 38 C.F.R. § 4.20. Diagnostic Code 5201, at some levels of severity, distinguishes between the major (dominant) extremity and minor (non-dominant) extremity. Under Diagnostic Code 5201, the criterion for the next higher rating, 30 percent, for the major extremity (the right shoulder) is limitation of the arm to midway between the side and shoulder level, that is, 45 degrees. For limitation of motion to 25 degrees, the minor extremity, here the left shoulder, is rated at 30 percent, and the major extremity, here, the right shoulder, is rated at 40 percent. DC 5202 allows for ratings of 20 to 80 percent for impairment of the humerus in the major extremity, and ratings of 20 to 70 percent in the minor extremity. DC 5203 for impairment of the clavicle or scapula provides a maximum 20 percent rating for dislocation or nonunion with loose movement of either extremity. Normal ranges of motion of the shoulder are forward flexion and abduction from 0 to 180 degrees and internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms “flare up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s bilateral shoulder disabilities have been evaluated numerous times since his claim for service connection in December 2001. In addition to his regular medical treatment, the Veteran underwent VA examinations that evaluated the severity of his bilateral shoulder disabilities in September 2001, March 2003, May 2009, December 2011, August 2014, March 2017, and May 2018. In September 2001, the Veteran’s shoulders were evaluated by a VA examiner. The Veteran reported chronic pain in both shoulders with the right side being worse than the left. He stated that he could not raise his arm to lift a trash can cover; however, he could bend and lift a laundry basket. The Veteran was noted to have forward elevation or abduction of the shoulder to 60 degrees with extreme pain. He was unable to raise his arms above 90 degrees. In March 2003, the Veteran shoulders were again evaluated by a VA examiner. The Veteran is right-handed by history. The Veteran reported stiffness in his right shoulder. Range of motion of the shoulders revealed shoulder elevation of the right arm from 0 to 80 degrees without pain and painful motion from 80 to 90 degrees. Abduction on the right was reported to be from 0 to 60 degrees without pain, and from 60 to 70 degrees was painful. Range of motion testing on the left revealed shoulder elevation of the left arm from 0 to 100 degrees without pain and painful motion from 100 to 110 degrees. Abduction on the left was reported to be from 0 to 90 degrees without pain. In May 2009, the Veteran underwent a VA joints examination that evaluated his bilateral shoulders. The Veteran reported that his shoulder pain keeps him from using prescribed crutches. The examiner noted that the Veteran’s shoulders demonstrated stiffness, weakness, giving way, and decreased speed. Range of motion testing revealed flexion of the right shoulder from 0 to 90 degrees with pain at that point; however, after repetitive motion flexion was reduced to 0 to 70 degrees. Flexion of the left shoulder was noted to be 0 to 90 degrees with pain at that point; however, after repetitive motion flexion was reduced to 0 to 45 degrees. Abduction on the right was reported to be from 0 to 90 degrees without pain; however, after repetitive motion, abduction was limited to 0 to 80 degrees. Abduction on the left was reported to be from 0 to 90 degrees without pain; however, after repetitive motion, abduction was limited to 0 to 60 degrees. In December 2011, the Veteran was seen for another VA examination. He reported increased pain and decreased range of motion since his previous examination. He reported random sharp, stabbing pains that will last 10-15 minutes before resolving. He also complained of decreased strength in the upper extremities, especially with any lifting. Range of motion testing revealed right shoulder flexion from 0 to 75 degrees, with evidence of painful motion at 50 degrees. Right shoulder abduction was reported to be from 0 to 80 degrees; however, painful motion began at 55 degrees. Left shoulder flexion was noted to be from 0 to 80 degrees, with evidence of painful motion at 55 degrees. Upon repetitive motion testing, no additional limitation was noted for either shoulder. Left shoulder abduction was reported to be from 0 to 80 degrees; however, painful motion began at 60 degrees. In August 2014, the Veteran shoulders were again evaluated by a VA examiner. The Veteran stated that he has daily, constant pain but reported some relief from prescribed narcotics. Range of motion testing revealed bilateral shoulder flexion from 0 to 80 degrees without evidence of painful motion. Abduction was demonstrated without pain from 0 to 80 degrees on the right and 0 to 75 degrees on the left. Additional limitations were not demonstrated after repetitive use testing. In August 2015, the Veteran submitted a private evaluation of the Veteran conducted by R.B., D.C. The chiropractor stated that range of motion testing revealed left shoulder flexion to 109 degrees with restriction and pain. Right shoulder flexion was to 114 degrees with poor joint movement and pain. The examiner opined that the Veteran had moderately severe loss of range of motion of the bilateral shoulders. In February 2016, the Veteran was seen for an orthopedic surgery consult regarding his avascular necrosis of his bilateral shoulders. The Veteran was reported to have “exquisitely limited” right and left shoulder flexion, extension, internal/external rotation, abduction, and adduction. The Veteran’s conditions were noted to make “daily activities difficult” and that reaching anything “above eye level with the hand” was painful. In March 2017, the Veteran’s shoulders were evaluated by a VA examiner. The Veteran reported symptoms of constant stabbing pain in both shoulders. He stated that the condition caused decreased range of motion in his shoulders and resulted in difficulty lifting his arms above shoulder level. The Veteran reported that he could perform all activities of daily living and that he could drive. He stated that surgery was not recommended at that time. Range of motion testing revealed flexion of the right shoulder from 0 to 90 degrees and abduction from 0 to 75 degrees. Flexion of the left shoulder was from 0 to 90 degrees and abduction was from 0 to 75 degrees. No additional limitations were reported due to observed repetitive use or repeated use over time. In May 2018, the Veteran’s shoulders were evaluated again. The Veteran reported flare ups of his shoulder symptoms that result in pain and stiffness. He reported functional impairment that caused limited range of motion and made heavy lifting difficult. Range of motion testing revealed flexion of the right shoulder from 0 to 90 degrees and abduction from 0 to 90 degrees. Flexion of the left shoulder was from 0 to 90 degrees and abduction was from 0 to 90 degrees. During flare-ups, however, the Veteran flexion of the right shoulder was reduced to 0 to 60 degrees and abduction from 0 to 60 degrees. Flexion of the left shoulder was reduced to 0 to 60 degrees and abduction from 0 to 60 degrees during flare-ups. Upon review of the evidence of record, the Board finds that the Veteran’s limitation in flexion of his right shoulder warrants a rating of 30 percent, but not in excess of 30 percent, for limitation of motion of his arm. Unfortunately, the Board finds that the evidence does not support a rating in excess of 20 percent for limitation of function of the left shoulder. Throughout the appeal period, the Veteran has argued that his limitation in motion due to his avascular necrosis is more severe that is contemplated by the 20 percent ratings initially assigned for his left and right shoulders. The evidence throughout the appeal period indicates limitation of the Veteran’s shoulders to at least midway between side and shoulder level. During the Veteran’s initial VA examination of his shoulders in December 2001, the Veteran was reported to have limitation of flexion and abduction of the shoulder to 60 degrees bilaterally. This demonstrates limitations of range of motion below shoulder level and limitations that more nearly approximate midway between side and shoulder level. Shoulder level is 90 degrees, and midway between side and shoulder level is 45 degrees. The Board notes that 60 degrees is closer to 45 degrees than 90 degrees. Further, evaluations during the appeal period have demonstrated limitations beyond 60 degrees. During the Veteran’s May 2009 examination, left shoulder flexion was reduced to 0 to 45 degrees, after repetitive motion. In December 2011, right shoulder flexion provided evidence of painful motion at 50 degrees and left shoulder flexion provided evidence of painful motion at 55 degrees. Based on the above, the evidence shows that the Veteran’s right and left shoulder disabilities have been manifested by symptoms of pain and “tightness” that more nearly approximates limitation of motion to midway between side and shoulder level; accordingly, an initial rating of 30 percent under Diagnostic Code 5201 have met for the right (major) arm. 38 C.F.R. §§ 4.3, 4.7. Unfortunately, limitations to midway been side and shoulder do not provide a rating in excess of 20 percent for the minor shoulder, and a higher rating is not warranted for the left (minor) arm. The Board further finds that a higher initial rating in excess of 30 percent for the right shoulder disability under Diagnostic Code 5201 or any other diagnostic codes pertaining to the shoulder is not warranted. First, with respect to Diagnostic Code 5201, the Veteran is only entitled to a single disability rating for the right arm for limited motion at the shoulder joint. In Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013), the Federal Circuit held that 38 C.F.R. § 4.71a, Diagnostic Code 5201 does not provide separate ratings for limitation of motion in the flexion and abduction planes for a single arm, but rather a single rating based on “limitation of motion of” the arm. As such, even though the Veteran has limitation of motion both in flexion and abduction in this case, only a single rating, based on the greatest type of limitation of motion, is warranted. Further, a rating in excess of 30 percent is only available under DC 5201 based upon limitation of motion to 25 degrees from the Veteran’s side. Here, the evidence, even the Veteran’s reports during flare-ups, does not indicate limitation of motion that more nearly approximates limitation of motion to 25 degrees for either the left or right shoulder. The Veteran has repeatedly been tested on his range of motion of his shoulders and the evidence supports range of motion that more nearly approximate limitations to 45 degrees, even considering painful motion, after repetitive use, and during flare-ups. While the Veteran’s shoulders are noted to be “exquisitely limited” in his February 2016 orthopedic surgery consultation, the examiner does not provide a numerical statement on how limited the Veteran’s shoulders were during this evaluation. Further, the Veteran reported during his subsequent March 2017 examination that, despite his limitations, he stated that could perform all activities of daily living and that he could drive. The evidence of record does not demonstrate that either the Veteran’s right shoulder disability or his left shoulder disability has manifested in ankylosis of the scapulohumeral articulation, fibrous union, nonunion, or loss of head of the humerus, or that the Veteran underwent a total shoulder joint replacement; thus, the Board finds that a higher rating in excess of 30 percent for the right shoulder (or in excess of 20 percent for the left shoulder) is warranted under Diagnostic Codes 5200, 5202, and 5051. For these reasons, the Board finds that the Veteran’s avascular necrosis of the right shoulder warrants a 30 percent rating, but no higher than 30 percent, throughout the appeal period; however, a rating in excess of 20 percent for the left (minor) shoulder is not warranted throughout the appeal period. In making these determinations, the Board considered the Veteran’s complaints of pain. However, a thorough review of the record does not indicate the Veteran met or nearly approximated the criteria for a rating in excess of 30 percent for a right shoulder disability or the criteria for a rating in excess of 20 percent for a left shoulder disability even when taking into account his complaints of pain and functional impairment. 38 C.F.R. §§ 3.102, 4.3, 4.45, 4.59. Additional Considerations The above determinations are based upon consideration of applicable rating provisions. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an “extra-schedular” evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321 (b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran’s service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321 (b) (1). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. In this case, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as his range of motion and other functional limitations, are “like or similar to” those explicitly listed in the rating criteria. See Mauerhan, 16 Vet. App. at 443. Moreover, neither the Veteran nor his representative have argued that an extra-schedular rating is warranted, 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). His contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the assigned rating. In summation, the evidence shows that the manifestations and resulting impairments of the Veteran’s avascular necrosis of the right and left shoulders are contemplated by the rating schedule and result in symptoms that are reflected by the rating schedule such pain, limitation of motion, and resulting functional impairment. Accordingly, the Board finds that this case does not warrant referral for extraschedular consideration. 38 C.F.R. § 3.321 (b). Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. The Board finds that evidence of record indicates that the duty to notify has been satisfied. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The Board also finds that the duty to assist has been satisfied. The Veteran’s service treatment records, VA and private treatment records, multiple VA examinations, and a private chiropractic evaluation have been associated with the claims file. The Board finds the medical examinations of record are adequate to resolve the increased rating claims decided on appeal. The Board finds these examinations, in combination with the treatment records associated with the claims file, to be comprehensive and sufficient in addressing the severity of the Veteran’s symptoms and resulting functional impairment caused by the Veteran’s avascular necrosis of his right and left shoulders during the appeal period. In this regard, it is noted that these examinations were provided following review of the claims file, physical examination of the Veteran, and interview of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not identified any outstanding records that are relevant to any of the claims denied in this decision. The Board finds that the duty to assist has, therefore, been satisfied and there is no reasonable possibility that further assistance would be capable of substantiating the claims decided on appeal. 38 U.S.C. § 5103A (a)(2) (2012). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel