Citation Nr: 18141123 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 10-22 348A DATE: October 9, 2018 ORDER Entitlement to an increased disability rating in excess of 20 percent for right shoulder impingement syndrome is denied. REMANDED Entitlement to service connection for a back disability, to include as due to service-connected right shoulder impingement syndrome is remanded. FINDING OF FACT During the appeal period, the Veteran’s right shoulder impingement syndrome (dominant) was manifested by range of motion limited to at shoulder level. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 20 percent for right shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1994 to March 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2009, August 2011, and December 2011 rating decisions. In May 2012, a Travel Board hearing was held before a Veterans Law Judge (VLJ) no longer with the Board, and a transcript is of record. As the VLJ who presided at a hearing must participate in the decision on the claim, 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707, the Veteran was offered the opportunity for another hearing before the VLJ who would decide his case. By letter dated in January 2018, the Veteran waived his right to such hearing. Most recently, in September 2016, the Board remanded these issues for further development, and the case has been returned for appellate consideration. The Board finds there has been substantial compliance with its September 2016 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Dyment v. West, 13 Vet. App. 141, 146–47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). Increased Rating Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing 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 his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, 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. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the 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. With particular respect to the joints, the disability factors reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. When evaluating joint disabilities rated on the basis of limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria.”). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element 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. Read together, 38 C.F.R. § 4.71a, Diagnostic Code 5003, and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, that is established by X-ray, is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). Concerning the range of motion findings of the joint at issue here, the Board notes that not all the VA examination reports include passive range of motion or specify range of motion with and without weight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. With the exception of the January 2017 VA examination of the Veteran’s right shoulder, there is no indication on the VA examinations of record that range of motion testing was performed other than on weight bearing. However, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing because such results tend to produce the “worst case scenario” of impairment and thus would tend to support the highest possible rating. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. Entitlement to an increased disability rating in excess of 20 percent for right shoulder impingement syndrome is denied. The Veteran contends that his service-connected right shoulder disability is more disabling than contemplated by the assigned evaluation. In a June 2009 statement, he reported continuous pain in the right shoulder and the sensation of bone-on-bone during movement. In his January 2010 notice of disagreement, he stated that examinations were not indicative of the limitations of his right shoulder disability because they are not conducted after a full day of working as an electrician. In a June 2010 letter, the Veteran stated that after a day’s work he could not lift his arm past side level without experiencing severe pain. In an August 2011 letter, he stated that he got tingles in his fingers, sharp pain in the area between his shoulder and right pectoral muscles, and a definite increase in weakness. The question for the Board is whether the Veteran’s right shoulder disability picture more nearly approximates the criteria for a higher disability rating. The appeal period before the Board begins April 29, 2008, the date VA received the claim for an increased rating, plus the one-year look-back period. 38 U.S.C. §§ 5110(a), (b)(3); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Board concludes that during the appeal period, a disability rating in excess of 20 percent for the Veteran’s right shoulder disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Here, throughout the appeal period, the Veteran’s right shoulder disability was evaluated as 20 percent disabling under Diagnostic Code 5019-5201. In the assignment of diagnostic codes, hyphenated numbers may be used. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. Here, Diagnostic Code 5019 sets forth the criteria for rating bursitis, and Diagnostic Code 5201 sets forth the criteria for limitation of motion of arm. VA regulations indicate that handedness will be determined by the evidence of record. 38 C.F.R. § 4.69. Here, according to his service treatment records, the Veteran is left-handed, however, during a September 2001 VA examination it was noted that he signed his name with his right hand. During the June 2009 VA examination of his right shoulder, it was noted that his hands were equally dominant because he could use them to write, eat, and comb his hair. On the report of the January 2017 VA examination, it was indicated that he is ambidextrous. Accordingly, the disability ratings under the various diagnostic codes for shoulder and arm will be for the major (dominant) shoulder. Under diagnostic codes 5013 through 5024, which includes bursitis under Diagnostic Code 5019, the diseases will be rating on limitation of motion of affected parts, as degenerative arthritis, except gout which will be rated under Diagnostic Code 5002. 38 C.F.R. § 4.71a, Diagnostic Codes 5013-5024. Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. 38 C.F.R. § 4.71a. Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Under Diagnostic Code 5201, for the major extremity, limitation of motion of arm at shoulder level warrants a 20 percent rating; midway between side and shoulder level warrants a 30 percent rating; to 25 degrees from side warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. In June 2009, the Veteran was afforded a VA examination during which he reported localized, constant pain of severity of 10/10 consisting of crushing, aching, sharp, and cramping. He reported weakness, stiffness, redness, giving way, lack of endurance, and fatigability. He reported that at times he had to stop work to regain strength. It was noted that there was tenderness but no signs of edema, effusion, weakness, redness, heat, guarding of movement, or subluxation. On initial range of motion testing of the right shoulder, flexion was to 120 degrees; abduction was to 90 degrees; external rotation was to 90 degrees; and internal rotation was to 70 degrees. It was noted that after repetitive use testing, there was no additional loss of range of motion but there was pain. It was noted that motor function, sensory function, reflexes were within normal limits. It was noted that the right shoulder X-ray findings were within normal limits. During his May 2012 hearing, the Veteran explained that he believed his right shoulder should be evaluated as more disabling because since his surgery in 1997 on that shoulder it had gotten increasingly weaker and more painful. He stated that he could hear it cracking. He explained that when working overhead he would stop to rest his right shoulder or switch to using his left hand. He stated that as an apprentice he worked 32 hours and went to school one day per week. He stated that he could drive and tend to his activities of daily living with constant discomfort. He reported living a physically demanding life. In March 2016, the Veteran was afforded a VA examination during which he reported snapping, locking, feeling of instability, (++) stiffness, and pain in severity of 7-10/10 of the right shoulder. He reported that pain was exacerbated by holding the telephone, walking his dog, and overhead activities as required of an electrician. He reported rapid fatigue with shooting pain, numbness, and tingling in the right arm when seated with elbow at rest or overhead constantly. It was noted that EMG studies were performed in February 2000 without evidence of axillary neuropathy. On initial range of motion testing of the right shoulder, flexion was to 140 degrees; abduction was to 145 degrees; external rotation was to 90 degrees; and internal rotation was to 85 degrees. Pain was noted on examination during flexion and abduction but did not cause functional loss. It was noted that there was pain on weight bearing; localized tenderness on palpation; and crepitus. It was indicated that the right shoulder was examined immediately after repetitive use over time, and that pain and fatigue caused functional loss but it could not be described in terms of range of motion. It was indicated that the examination of the right shoulder was medically consistent with the Veteran’s statements describing functional loss during flare-ups. It was indicated that muscle strength was normal but it was indicated that there was muscle atrophy of the right deltoid, laterally. It was stated that it could not be measured but there was slight flattened appearance of the lateral aspect of the right deltoid muscle. It was indicated that there was no ankylosis. It was noted that there was osteoarthritis of the right acromioclavicular (AC) joint and that there was tenderness on palpation. It was noted that the cross-body adduction test was positive. It was also noted that imaging revealed mild to moderate arthrosis at the AC joint. In January 2017, the Veteran was afforded a VA examination for his right shoulder during which he reported he was working as an electrician, using his right arm, having constant pain, and the shoulder got tired if held up too long. He reported having had injections in the distant past, no recent treatment, and physical therapy a few times without result. On initial range of motion testing of the right shoulder, flexion was to 165 degrees; abduction was to 160 degrees; external rotation was to 80 degrees; and internal rotation was to 70 degrees. Pain was noted on examination during flexion, abduction, and internal rotation, and it caused functional loss. On repetitive use testing, flexion was to 150 degrees; abduction was to 150 degrees; external rotation was to 80 degrees; and internal rotation was to 70 degrees. It was recorded that there was localized tenderness on palpation and objective evidence of crepitus. It was indicated that the examination was medially consistent with the Veteran’s statements describing functional loss with repetitive use over time. It was explained that with prolonged use of the right shoulder working overhead there would be pain, decreased range of motion, and increased incoordination, but it would be speculation to quantitate the effect in loss of range of motion. It was indicated that muscle strength was normal, there was no muscle atrophy, and no ankylosis. It was also indicated that there was a history of mechanical symptoms, such as clicking, catching, etc., but no history of recurrent dislocation of the glenohumeral (scapulohumeral) joint. It was indicated that the Crank apprehension and relocation test was positive. It was indicated that there were no impairments of the humerus. It was observed that the Veteran’s right shoulder rode higher and the musculature to the superior and posterior was more tense than the left shoulder. The Veteran reported tingling to the right thumb during cross-body abduction test. It was indicated that the Veteran reported pain with passive range of motion testing, and there was objective evidence of pain with range of motion testing during both active and passive testing. It was indicated that there was objective evidence of pain during active and passive nonweight bearing range of motion testing. It was noted that there was objective evidence of damage to the left shoulder as indicated on MRI. The Board notes that the Veteran is competent to report that which he has perceived through the use of his senses, including the occurrence of pain and other symptoms of his right shoulder disability. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). He is not, however, competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities, and the Board finds that the objective medical findings are more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). As an initial matter, the Board notes that the record does not contain evidence that the Veteran’s right shoulder disability manifested as ankylosis of the scapulohumeral articulation (Diagnostic Code 5200) or other impairment of the humerus (Diagnostic Code 5202). 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. The Veteran does not contend otherwise, and accordingly, a higher and/or separate rating is not warranted under either of these diagnostic codes. Based upon a careful review of the foregoing, the evidence establishes that the Veteran has a right shoulder disability manifested by chronic pain, reduced range of motion, numbness and tingling in the right arm, weakness, stiffness, giving way, redness, lack of endurance, loss of coordination, and fatigability. During the March 2016 VA examination, muscle atrophy of the right deltoid muscle laterally was noted as a slight flattened appearance. This was not noted elsewhere during examinations. The Board concludes that, during the entire appeal period, the Veteran’s range of motion of his right shoulder has been functionally limited to at shoulder level. 38 C.F.R. § 4.71a, Diagnostic Code 5201. During the June 2009 VA examination, right shoulder abduction was to 90 degrees with flexion to 120 degrees, which is the most restricted the Veteran’s range of motion has been during testing. Additionally, the Board notes that throughout the appeal period the Veteran was capable of raising his arm to shoulder height to perform external and internal rotation range of motion testing. The examiners indicated that the testing was consistent with the Veteran’s reports of functional loss after repetitive use over time. In evaluating the Veteran’s claim under 38 C.F.R. §§ 4.40, 4.45, and DeLuca, the Board finds that there is no objective evidence to support finding that it is as likely as not that the Veteran’s symptoms of pain, fatigability, weakness, or incoordination result in a further reduction in range of motion to midway between the side and shoulder level. Indeed, during the pendency of this appeal, the Veteran’s range of motion testing has revealed improved range of motion. During the January 2017 VA examination, on repetitive use testing, both flexion and abduction were to 150 degrees. Additionally, the Veteran has not reported episodes of the right shoulder not recovering after rest or the loss of work due to loss of range of motion of the right shoulder. Therefore, a disability rating in excess of 20 percent for the Veteran’s right shoulder disability is not warranted as such rating requires limitation of motion to midway between side and shoulder level on the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board has considered evaluation under Diagnostic Code 5203, impairment of clavicle or scapula, but because a disability rating of 20 percent is the maximum for a major extremity and there is no evidence of dislocation, a higher and/or separate rating under this diagnostic code is not warranted. The Board notes that the Veteran reported tingling, but EMG studies did not reveal axillary neuropathy. Hence, evaluation under Diagnostic Code 8510, paralysis of upper radicular group, for a higher and/or separate rating is not warranted. The Board notes that the Veteran is separately service-connected for his surgical scar from right shoulder surgery, so it will not be addressed herein. None of the above suggests, in any way, that the Veteran does not have many problems with this disability (if he did not, there would be no basis for the 20% finding, which very generally indicates a 20% reduction in the ability of the Veteran to work, which the Veteran has very clearly indicated he has). Such a problem will clearly limit the Veteran. The only question in this case in the degree of the problem based on the criteria cited above, nothing more. Accordingly, a disability rating in excess of 20 percent under Diagnostic Code 5201 for the Veteran’s service-connected right shoulder impingement syndrome is not warranted. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND Entitlement to service connection for a back disability, to include as due to service-connected right shoulder impingement syndrome is remanded. The Veteran seeks service connection for a back disability. In May 2011, he was afforded a VA examination during which chronic lower back pain was diagnosed status post laminectomy in 2005. It was recorded that the Veteran reported that it was mostly left-sided low back pain and into the buttocks. The Veteran’s service treatment records show that in October 1995 he complained of left lower back pain, which had been present for several months. It was noted that there was some CVA (costovertebral angle) tenderness on the left side and pain to the lower back with movement. The Veteran was placed on light duty for three days and prohibited from prolonged standing or walking. They also show that in October 1997 he complained of left lower back pain after having bent over and lifted an object three days before. In February 1998, he was seen for evaluation of a knot on his back of two-and-a-half weeks duration. To date, a medical opinion has not been obtained as to whether there is a connection between the Veteran’s current back disability and his in-service treatment of back pain. Accordingly, a remand is required to determine the relationship, if any, between the Veteran’s current back disability and his in-service back complaints, particularly relating to left lower back pain, taking into account the record evidence and accepted medical principles. 38 C.F.R. § 3.159(c)(4), (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the nature and etiology of the Veteran’s back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including this Remand, and to indicate review of the file in the examination report. Particular attention should be given to the Veteran’s service treatment records showing complaints of left lower back pain and his current complaints of left lower back pain. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Please indicate whether the Veteran’s back disability is at least as likely as not (50 percent or greater probability) due to or aggravated by an in-service injury, event, or disease. The examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must reconcile any opinion with the evidence of record, citing to the record as appropriate. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney