Citation Nr: 18143940 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-37 758 DATE: October 22, 2018 ORDER Entitlement to a rating in excess of 20 percent for the service-connected left shoulder disability is denied. FINDING OF FACT 1. The Veteran is right hand dominant. 2. During the pendency of this claim, the Veteran’s left shoulder disability limited the range of motion of his arm, and he experienced pain and functional loss, but he was not limited by any of these factors to most closely approximate limitation of motion to 25 degrees from his left side. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the left shoulder disability, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking a rating in excess of 20 percent for his service-connected left shoulder anterior dislocation residuals and arthritis, status post rotator cuff repair (left shoulder disability). He was originally service connected for the left shoulder disability in February 1999 and filed this claim for increase in November 2013 following his left shoulder surgery. The Regional Office (RO), by way of the May 2014 rating decision on appeal, awarded a 100 percent convalescent rating effective the date of his surgery, with the 20 percent schedular rating resuming effective January 1, 2014. The Veteran has perfected an appeal of the 20 percent rating assigned. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected left shoulder disability on appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., 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 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In increased rating claims, the Board must discuss whether “staged ratings” are warranted. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s left shoulder disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201. Under DC 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor arm; limitation of motion midway between side and shoulder level warrants a 30 percent rating for the major arm and 20 percent for the minor arm; limitation of motion to 25 degrees from the side warrants a 40 percent rating for the major arm and 30 percent for the minor arm. Under 38 C.F.R. § 4.69, 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 injured hand, or the most severely injured hand of an ambidextrous individual will be considered the dominant hand for rating purposes. The Board observes the Veteran’s hearing testimony suggesting he is ambidextrous; however, he did indicate that he writes and signs with his right hand, but that he had to become adept with the use of his left hand due to his work as a surgical assistant in operating rooms. He confirmed that no one had formally declared him ambidextrous. A review of the clinical records reveals no indication of the Veteran as ambidextrous other than a single physical therapy note dated in September 2014, which shows the Veteran reporting himself as right handed, but also ambidextrous. The Board considers this to be the Veteran’s report similar to what was stated at the hearing, such that he is right hand dominant but developed the ability to use both well due to his work. The Board finds, based upon the record, including the Veteran’s own hearing testimony, that he is right hand dominant. Thus, the left shoulder at issue in this appeal is his minor extremity for purposes of rating under DC 5201. The Board has also reviewed the various rating criteria available for the upper extremity, which include criteria pertaining to amputation and ankylosis, neither of which are present in this case. No part of the Veteran’s upper extremity has been amputated and the evidence does not show, nor does he contend, that his left shoulder joint is manifested by ankylosis, an immobility and consolidation of a joint due to disease, injury or surgical procedures. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). The Veteran underwent left shoulder rotator cuff repair in November 2013. A December 2013 post-surgery follow up clinical note shows he was experiencing no pain and could move his arm to 45 degrees adduction, however, other ranges of motion were not stressed at this time. The Veteran was within his period of a 100 percent convalescent rating at that time. The Veteran was afforded a VA examination in May 2014. Left shoulder range of motion was reduced at all measurements with flexion to 120 degrees, adduction to 45 degrees, external rotation to 10 degrees and internal rotation to 20 degrees. After repetitive-use testing, the left shoulder abduction was to 30 degrees. The examiner noted decreased muscle strength and atrophy on the left. The Veteran described interference with sleep and an inability to continue pursuit of his avocation of first surgical assistant in orthopedic surgery. The examiner noted his marked loss of range of motion caused difficulty with self-feeding, as well as impacted his ability to lift objects above his mid-abdomen. The Veteran also noted an inability to sit in chairs with arms, difficulty lifting objects heavier than tableware or writing instruments, and great difficulty using keyboards. September 2014 physical therapy notes indicate the Veteran’s left abduction was to 36 degrees. An October 2014 clinical record also indicates a significant increase in pain with shoulder abduction above the nipple line. In a June 2015 statement, the Veteran indicated his motion was limited such that he could not hold a car steering wheel at the 10 and 2 positions. This is consistent with the findings noted in the VA examination and clinical records. The Veteran was again afforded a VA examination in August 2015. He confirmed at this time that he does not experience flare-ups of pain or functional loss, but that he has pain with any overhead use, reaching or heavy use. Left shoulder abduction was noted to be from 0 to 80 degrees at that time, with no additional loss of motion or function with repetitive use testing. This examiner noted that there was no indication of muscle atrophy, but there was slightly less than normal muscle strength with active movement against some resistance. The examiner did recognize the presence of pain with weight bearing, but noted that there was no additional loss of motion or function due to that pain. At his July 2016 Board hearing, the Veteran reported an inability to do anything with his left arm lifted above the nipple level, which is consistent with his prior statements and the clinical evidence. There was no indication of a worsening since the most recent VA examination; thus, the Board finds a remand for a new examination is not warranted. The Board finds that throughout the pendency of this claim, the Veteran’s left arm has indeed experienced limited motion due to the shoulder disability and he has experienced pain and functional loss. At no time, however, has the measured motion or the description of the functional loss (difficulty while eating and doing other things requiring him to lift his arm above mid-abdomen or nipple level, difficulty holding the steering wheel in certain positions and an inability to sit in chairs with arms) risen to the level of limitation of motion to 25 degrees from the Veteran’s side. The measured motion and functional limitations caused by the dysfunction of the joint and by pain more closely approximate limitation of motion midway between the side and shoulder level, which warrants a 20 percent rating for the minor side under DC 5201. In considering whether a higher disability rating is warranted for the Veteran’s left shoulder disability under any other diagnostic code, during the period on appeal, he was never diagnosed with scapulohumeral articulation ankylosis (DC 5200), impairment or malunion of the humerus (DC 5202), or impairment, dislocation, nonunion or malunion of the clavicle or scapula (DC 5203). Therefore, a higher disability rating under another diagnostic code is not for application. “Staged” ratings for left shoulder disability are also not applicable, as there was no evidence during the appeal period that the Veteran’s shoulder disorder was ever more disabling than the current rating contemplates. Finally, the Board acknowledges the Court decision in Rice v Shinseki, 22 Vet. App. 447 (2009), holding that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, while the Veteran has reported an inability to continue being a first assistant in orthopedic operating rooms, the record does not indicate that all, including sedentary employment, would be precluded solely by the service-connected left shoulder disability. Thus, the issue of entitlement to a TDIU is not part of this increased rating appeal. Based on the foregoing, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 20 percent for the left shoulder disability. The Veteran’s appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel