Citation Nr: 18144718 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-46 272 DATE: October 25, 2018 ORDER Entitlement to a rating in excess of 10 percent for post-operative residuals, lesion, right (dominant) shoulder, for the period prior to April 28, 2017 is denied. REMANDED Entitlement to an increased rating for post-operative residuals, lesion, right (dominant) shoulder, for the period April 28, 2017 forward is remanded. FINDING OF FACT The preponderance of the evidence shows that for the period prior to April 28, 2017, the right shoulder manifested with limitation of motion (LOM) greater than 25 degrees from the side, midway between side and shoulder lever, and greater than shoulder level; and, an asymptomatic surgical scar residual. CONCLUSION OF LAW The requirements for a rating higher than 10 percent for post-operative right (dominant) shoulder disability for the period prior to April 28, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to an increased rating for post-operative residuals, lesion, right (dominant) shoulder, for the period prior to April 28, 2017 Legal Requirements The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205. The intent of the rating 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. 38 C.F.R. § 4.59. The Court of Appeals For Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion and other testing be conducted whenever possible in cases of joint disabilities. For the thoracolumbar spine, normal ROM on forward flexion is 0 to 90 degrees; backward extension, 0 to 30 degrees; lateral flexion and lateral rotation, 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V. Rating Criteria Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. A distinction is made between major (dominant) and minor upper extremities for rating purposes. In the instant case, the examination reports reflect that the Veteran is right handed, which means that his disabled shoulder is the major, or dominant, shoulder. The applicable criteria for the major side provide that shoulder motion limited to 25 degrees from the side warrants the maximum, 40 percent rating; motion limited to midway between the side and shoulder level warrants a 30 percent rating; and, motion to shoulder level warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5201. Normal ROM for the shoulder is 0 to 180 degrees for forward flexion (elevation) and abduction; and, 0 to 90 degrees for internal and external rotation. See 38 C.F.R. § 4.71a, Plate I. Discussion The Veteran sustained a right shoulder injury during active service that required corrective surgery. A June 2001 rating decision granted service connection with a 10 percent rating, effective in December 2000. See 06/03/2001 Rating Decision. VA received the Veteran’s current claim of entitlement to an increased rating in January 2012. See 01/23/2012 VA 21-0820. An examination was arranged. The February 2012 examination report (02/21/2012 VA Examination) reflects that the examiner noted the Veteran’s diagnosis of record, which was post-operative right shoulder lesion with residual pain and reduced motion. The Veteran reported complaints of daily pain that radiated to the mid anterior arm and upward to the supraclavicular fossa, and that during flare-ups he was unable to do heavy lifting and work overhead. Physical examination revealed positive tenderness to palpation and guarding. ROM on flexion was 0 to 130 degrees with onset of pain at 90 degrees, and 0 to 110 degrees on abduction with onset of pain at 90 degrees. On repetitive-use testing, flexion was 0 to 120 degrees, and abduction 0 to 100 degrees. The examiner assessed the Veteran’s functional loss as pain on movement and less movement than normal. Id., P. 2-3. Muscle strength was normal, and the examiner noted that there was no ankylosis in the joint. Rotator cuff impingement and empty can tests were positive. The examiner noted that there was no history of instability or recurrent dislocation, or evidence of acromioclavicular (AC) joint involvement, and that the Veteran had not lost the use of his right shoulder. Crank apprehension testing was positive. X-rays were read as showing surgical changes; there was no evidence of arthritis. The objective findings on clinical examination show that the Veteran’s right shoulder continued to more nearly approximate the assigned 10 percent rating. 38 C.F.R. § 4.71a, DC 5201. A higher rating was not met or approximated, as ROM was above shoulder level in all spheres, to include after accounting for the loss of 10 degrees in each sphere on repetitive-use testing. See 38 C.F.R. § 4.40, 4.45, 4.71a, Plate I. The examiner noted that there was no evidence of impairment of the humerus, clavicle, or scapula. See 38 C.F.R. §§ 4.71a, DCs 5202, 5203. Further, the examination of the surgical scar revealed it as fully healed and asymptomatic. Hence, there is no factual basis for a separate rating for a painful scar. See 02/21/2012 VA Examination, P. 8-17. In his NOD (09/08/2012 NOD) and his hearing testimony, the Veteran voiced no dispute with the examination findings. Instead, his main objection is that the RO initially issued a raring decision that indicated that his rating had been increased to 40 percent. The RO detected the rating, informed the Veteran of the error, and corrected the evaluation to reflect continuation of the existing 10 percent rating. See 07/03/2012 Rating Decision-Narrative; 09/06/2013 Deferred Rating; 09/09/2013 Notification. The Veteran testified at the hearing that he receives all of his treatment from a non-VA provider. The undersigned held the record of the hearing open pending receipt of those records. Treatment records dated in 2013 and 2014 note the Veteran’s chronic right shoulder pain, his need for pain relievers, to include opiates, but they do not indicate right shoulder ROM at or below shoulder level at any time. In fact, and August 2013 entry notes normal, though painful ROM. See 07/17/2017 Medical Treatment-Non-Government Facility, P. 11 et seq. The VA examination report, the non-VA records, and the Veteran’s hearing testimony is that he works full time as a supervisory manager of a convenience store. The Board finds that the preponderance of the evidence of record shows that the right shoulder more nearly approximated the assigned 10 percent rating for the entire rating period before April 28, 2017. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.71a, DC 5201. Even considering the positive crank apprehension test, the overall findings are most consistent with the criteria for a 10 percent evaluation, even accounting for functional loss due to factors such as repetitive motion. Finally, to the extent that the examination in 2012 did not provide specific findings as to additional loss of motion on flare up, the Board notes that the Veteran has not raised any challenge to the examination. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). REASONS FOR REMAND The Veteran testified at the hearing that his right shoulder symptoms had worsened since the 2012 examination. He is entitled to a current examination where there is evidence that his disability has worsened since the last examination. The Veteran is fully competent to testify to the nature and extent of the symptoms of his disability. See 38 C.F.R. § 3.159(a)(2). Further, treatment records from his non-VA provider dated in 2017 note right should her pain on any movement, and that there was significant LOM of the shoulder. See 11/24/2017 Medical Treatment-Non-Government Facility. Entitlement to an increased rating for post-operative residuals, lesion, right (dominant) shoulder, for the period April 28, 2017 forward is remanded. The matter is REMANDED for the following action: Obtain all related treatment records generated for the right shoulder since April 28, 2017 and arrange an examination of the Veteran to determine the current extent and severity of the post-operative right shoulder disability. The examiner is asked to identify all symptomatology of the service-connected disability. The examiner is also asked to ascertain the timeframe of the Veteran’s use of pain relievers in proximity of the examination, and to assess what, if any, impact use of pain relievers may have had on ROM testing. Additional functional limitation with repetitive movement and with flare-ups should be noted, with any additional loss expressed in degrees. The inability to observe a flare-up is an inadequate basis for declining to provide an estimate as to its functional effects. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder