Citation Nr: 18143542 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-25 481 DATE: October 19, 2018 ORDER Entitlement to service connection for right bicep disability (previously claimed as a right bicep tear) is granted. Entitlement to a rating of 20 percent, but no higher, for a right shoulder disability is granted FINDINGS OF FACT 1. The Veteran’s right bicep disability was caused by his active service. 2. The Veteran is right-hand dominant. 3. The Veteran’s right shoulder condition is characterized by limitation of motion of the right arm to shoulder level; the Veteran has not exhibited range of motion limited to midway between the side and shoulder level or to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right bicep disability have all been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria required for a rating of 20 percent, but no higher, for a right shoulder disability have all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.69, 4.71a, Diagnostic Code (DC) 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1992 to September 2012. The Veteran was awarded a Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   Right Bicep Disability The Veteran claims he had a right bicep tear, which resulted from his in-service injury of being ejected from a vehicle struck by an improvised explosive device (IED). The medical evidence of record does not indicate the Veteran has been diagnosed with a right bicep tear. The Veteran was afforded a VA examination in March 2015. The examiner found that the Veteran did not have a current diagnosis of a right bicep tear and stated that the medical records did not contain the pathology to render a diagnosis. However, the examiner stated that the Veteran did have a non-penetrating muscle injury (such as a muscle strain). The examiner indicated that the Veteran has symptoms attributable to a muscle injury, specifically, fatigue and pain of the muscle group V. As such, the Veteran has a current disability as established by a functional impairment of the right bicep muscle. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran’s service treatment records (STRs) show that he injured his right shoulder and arm in service when he was ejected from his vehicle, which was hit with an IED. STRs show that in April 2011 he presented with a swollen right arm immediately after the injury. He continued reporting right arm and shoulder pain during service. In June 2012, the Veteran underwent right shoulder arthroscopy and bicep tenodesis. As such, the second element of service connection has been met. Post-service, the Veteran has had consistent complaints of right upper extremity pain. He has had continued private physical therapy to address this disability and records indicate decreased strength in the right bicep. Considering that the Veteran’s right bicep disability resulted from his in-service injury, and he has had continuous symptoms since that injury, the preponderance of the evidence is favorable to finding that the nexus element has been met. Therefore, the preponderance of the evidence supports a finding of service connection for a right bicep disability. There is no reasonable doubt to be resolved as to the issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, 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. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Right Shoulder Disability The Veteran contends he is entitled to an increased rating for his right shoulder disability. The Veteran’s right shoulder disability is rated as 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201-5019. Under DC 5201, a 20 percent disability rating is contemplated for limitation of motion of the major or minor arm at shoulder level or for limitation of the minor arm to midway between side and shoulder level. A 30 percent disability rating is warranted for limitation of the major arm to midway between side and shoulder level or when motion of the minor arm is limited to 25 degrees from the side. A 40 percent disability rating is warranted when motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The Veteran is right hand dominant. When evaluating the left shoulder disability, minor, as opposed to major, extremity disability ratings will be applicable. When evaluating the right shoulder disability, major, as opposed to minor, extremity disability ratings will be applicable. 38 C.F.R. § 4.69. The standard ranges of motion of the shoulder are 180 degrees for forward elevation (flexion) and 180 degrees for abduction. The standard range of motion for internal and external rotation is 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran injured his shoulder in service when he was thrown from his vehicle when it was hit by an IED. The Veteran had arthroscopic right shoulder surgery in June 2012. The Veteran attended a March 2015 VA shoulder examination. The examiner found the Veteran’s right shoulder range of motion was flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. The Veteran reported pain on all ranges of motion, however, the examiner stated that the pain does not cause additional functional limitations. The examiner stated that pain, weakness, fatigability, or incoordination significant limit the Veteran’s functional ability with repeated use over time. The examiner indicated that pain causes functional loss, but was unable to describe the limitation in terms of range of motion. The Veteran reported flare-ups at the examination. He stated that he experiences flares once and week and they last for 2-to-3 days. The Veteran stated that his shoulder knots up and he has loss of strength and range of motion. The examiner found that the examination neither supported or contradicted the Veteran’s statements describing functional loss during flare-ups. The examiner found pain significantly limited the Veteran’s functional ability during flare-ups, but he was unable to describe this limitation in terms of range of motion. The examiner found that the Veteran had a suspected rotator cuff condition, but the Hawkins’ impingement test, empty-can test, extenuation rotation test, and lift-off subscapularis tests were negative. The examiner stated the Veteran did not have a clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition. In addition, the examiner did not find any condition or impairment of the humerus. The Veteran has attended physical therapy with a private provider for treatment for his shoulder disability. The physical therapy records indicate the Veteran has moderate activity limitation for his right shoulder. The Veteran reported pain at the end ranges of flexion, during mid-range of active shoulder horizontal adduction, and pain during mid ranges of reaching behind his back. The physical therapist also noted moderate weakness in the scapular adductors and mild weakness in shoulder external rotation. On the Veteran’s June 2015 notice of disagreement, he stated that he cannot lift his arm above shoulder level, and if forced to it is very painful. On the May 2016 VA form 9, the Veteran reported that since his injury it has been very painful for him to raise his arm above shoulder level. Considering the Veteran’s consistent reports of flare-ups, and his description of his pain and range of motion during those flares, the Board finds that the Veteran’s range of motion during flare-ups has been limited to his shoulder level. As such, the Veteran’s right shoulder disability most closely approximates the 20 percent criteria. A rating in excess of 20 percent is not warranted because the Veteran’s medical records and subjective statements do not indicate that he has had range of motion of the right arm limited to midway between his side and shoulder level. The Board observes that the rating schedule contains additional diagnostic codes pertaining to the shoulder and arm. See 38 C.F.R. § 4.71a, DCs 5200, 5202, and 5203. The Board has considered whether an increased evaluation would be in order under other relevant diagnostic codes, but finds that the criteria for a rating in excess of 20 percent are not met. The medical evidence of record does not show scapulohumeral articulation ankylosis, which is required for a rating under DC 5200. In addition, the record does not indicate impairment of the humerus or clavicle or scapula, required for a rating under DCs 5202 and 5203. The Board acknowledges that the Veteran was granted service connection for surgical scars, status post right shoulder rotator cuff surgery, which was evaluated as noncompensably disabling in the April 2015 rating decision. 38 C.F.R. § 4.118, DC 7805 (2017). The March 2015 examination found the Veteran had a right shoulder scar that measure 4 centimeters (cm) in length and 1 cm in width. The scar was not identified as painful or unstable. In light of the description above, the Board finds that the Veteran’s right shoulder scar does not warrant a compensable rating pursuant to DCs 7801-7805. A compensable rating under DC 7801, which evaluates impairment for scars other than the head, face, or neck requires that the scar be deep and nonlinear and that it exceed 6 square (sq.) inches (39 sq. cm.). The Veteran’s scar does not meet these criteria. A compensable rating under DC 7802 for superficial scars requires that the scar cover an area of 144 square inches (929 sq. cm.), which has not been shown. Scars that are unstable or painful warrant a 10 percent rating under DC 7804. The Veteran’s scar has not been described as unstable or painful, rendering DC 7804 inapplicable. Lastly, no limitation of function of the affected part due to the scar has been shown. Therefore, rating pursuant to DC 7805 is not warranted. As such, a separate compensable rating for the Veteran’s right shoulder scar is not warranted. See 38 C.F.R. § 4.118, DCs 7801-7805.   Therefore, the preponderance of the evidence supports finding that the Veteran’s right shoulder disability meets the rating criteria for 20 percent disabling, but no higher. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel