Citation Nr: 18144609 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 13-01 318 DATE: October 25, 2018 ORDER Entitlement to a rating in excess of 40 percent for a left shoulder injury is denied. FINDING OF FACT The Board finds that for the entire appeal period, the Veteran’s left shoulder injury most closely approximates unfavorable ankylosis with abduction limited to 25 degrees from the side. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for left shoulder injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes 5201-5200. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to October 1972 and from September 1976 to March 1977. This matter comes before the Board of Veteran’s Appeals (Board) from a January 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which continued a 40 percent rating for left shoulder condition. The Veteran testified before the undersigned Veterans’ Law Judge at a Travel Board Hearing in July 2018. A transcript is of record. Additional VA treatment records were received after the appeal was certified to the Board, but are not pertinent and duplicative. Thus, no waiver or supplemental statement of the case is needed. 38 C.F.R. § 20.1304 (c) (2017). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic of 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, if a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s left shoulder disability is currently evaluated under hyphenated Diagnostic Codes 5201-5200. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Under DC 5200, for ankylosis of scapulohumeral articulation, a 30 percent evaluation is warranted for intermediate ankylosis (minor extremity) between favorable and unfavorable. A 40 percent evaluation is warranted for unfavorable ankylosis (minor extremity) with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5200. Under DC 5201, for rating limitation of motion of the arm, maximum 30 percent disability evaluation is warranted when there is limitation of motion of the minor arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under DC 5202, other impairment of the humerus, a 40 percent evaluation is warranted for impairment caused by fibrous union, a 50 percent evaluation is warranted for nonunion or a false flail joint, and a maximum 70 percent evaluation is warranted for loss of the humeral head (a flail shoulder). 38 C.F.R. § 4.71a, Diagnostic Code 5202. Normal range of motion of the shoulder is set forth in 38 C.F.R. § 4.71, Plate I. Normal forward elevation, or flexion, is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Analysis The Veteran contends that he is entitled to a higher rating for his service-connected left shoulder disability, which is currently rated at 40 percent. The appeal period before the Board begins on March 31, 2009, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran underwent a VA contract examination in September 2009. He was noted to be right hand dominant. Symptoms of pain, fatigue, stiffness, swelling weakness, and lack of endurance were reported. The Veteran denied flare-ups. On objective examination, the examiner noted there was no ankylosis in the shoulder joint. Range of motion included forward flexion from to 30 degrees, abduction to 20 degrees, external rotation to 30 degrees, and internal rotation to 15 degrees. Upon repetitive motion tests, there was no additional motion lost, but pain was present. X-rays revealed evidence of old clavicular injury with mild acromioclavicular joint degenerative changes. During a VA examination in November 2010, atrophy of the musculature around the proximal humerus and shoulder was noted. The examiner noted that he resisted active motion. The examiner was able to passively abduct the shoulder 5 degrees; he had no adduction. The examiner noted that the Veteran held his shoulder against the lateral chest wall. The examiner was able to externally rotate to 90 degrees, but there was no internal rotation. All of the motions caused pain. There was no change in the range of motion, incoordination, fatigue, endurance or pain level upon passive repetitive motion. VA treatment records also show that the Veteran has ongoing symptoms such as pain and stiffness. February 2011 treatment records indicate increasing problems with pain and stiffness in his left shoulder. March 2012 treatment records indicate left-side weakness and tenderness upon palpation. July 2013 treatment records indicate decreased strength and continued pain and stiffness. June 2014 treatment records indicate worsening pain. December 2015 treatment records note left shoulder pain with decreased range of motion and swelling. June 2017 treatment records note general atrophy of muscles of the left upper-extremity and frozen shoulder. The Veteran last underwent a VA examination in April 2017. He reported aching and stiffness in his left shoulder and flare-ups of sharp pain and stiffness that further restrict range of motion. The examiner noted an inability to reach above shoulder level with left shoulder flexion from 0 to 30 degrees, abduction from 0 to 40 degrees, external rotation from 0 to 10 degrees, and internal rotation from 0 to 80 degrees. The examiner also noted moderate, localized tenderness or pain on palpation, pain with weightbearing and non-weight bearing, and crepitus. The Veteran was able to perform repetitive-use testing, which resulted in additional loss of function due to pain, fatigue, weakness, and lack of endurance. After a minimum of three repetitions, the Veteran’s range of motion was flexion from 0 to 20 degrees, abduction from 0 to 40 degrees, external rotation from 0 to 10 degrees, and internal rotation from 0 to 80 degrees. Accordingly, the examiner noted that pain, weakness, fatigability, and lack of endurance significantly limit functional ability after flares or with prolonged repetitive use. The April 2017 examiner also noted that less movement than normal and weakened movement are both contributing factors of disability. The examiner noted that the Veteran has does not have ankylosis, or any have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. Overall, the cumulative VA examination reports and VA treatment records confirm that the Veteran’s left shoulder condition is appropriately evaluated at a 40 percent rating under DC 5200-5201. This is the highest rating available for a non-dominant shoulder under DC 5200-5201. In an effort to afford the Veteran the highest possible evaluation, the Board has examined all other diagnostic codes pertinent to the shoulder. The only diagnostic code that allows for a higher rating is DC 5202. This Code requires impairment of the humerus (specifically, a flail shoulder or false flail joint). The Board has reviewed the relevant medical evidence, to include outpatient treatment records and VA examination reports. The clinical notes and VA examination reports fail to show evidence of any impairment of the humerus including loss of the humeral head, or any false flail joint or nonunion, or fibrous union of the humerus, which makes the rating code for humerus impairment (DC 5202) inapplicable. The June 2017 VA examiner specifically found no evidence of impairment of the humerus Therefore, DC 5202 does not provide a basis for a higher evaluation. The Board is cognizant that the Veteran has experienced functional impairment and pain due to his left shoulder condition. This impairment was considered in the 40 percent rating assigned for this appeal period. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, because the 40 percent evaluation is the maximum for limitation of motion of a minor shoulder joint under Diagnostic Codes 5200 and 5201, further DeLuca consideration is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Furthermore, the competent medical evidence does not establish the functional equivalent of impairment of the humerus required to warrant a higher evaluation for the period considered. Accordingly, a 40 percent rating, and no higher, is warranted for left shoulder condition for the entire period of appeal. There are no additional expressly or reasonably raised issues presented on the record. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Aoughsten, Associate Counsel