Citation Nr: 18147626 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 12-23 788 DATE: November 5, 2018 ORDER Entitlement to an increased disability rating in excess of 20 percent for right anterior sternoclavicular dislocation (right shoulder disability) is denied. FINDING OF FACT The Veteran’s right shoulder disability is not productive of limitation of motion of the arm to midway between his side and shoulder level. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5203-5201 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to May 1986, and from December 1986 to November 1993. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board previously remanded this appeal for further development in January 2015 and August 2017. The Board notes that the issue of entitlement to service connection for a low back disability was previously remanded. However, in a May 2018 rating decision, the RO granted service connection for low back disability, and assigned a 10 percent disability rating effective November 18, 2008, and a 40 percent rating effective August 23, 2017. As the Veteran has not expressed disagreement with the assigned ratings or effective dates, the issue is no longer in appellate status and is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977) (explaining that where a claim is granted during the pendency of an appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review concerning the assigned rating or effective date). Entitlement to an increased disability rating in excess of 20 percent for a right shoulder disability is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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. The Veteran was initially awarded service connection for his right shoulder disability in June 2002, and an initial 10 percent disability rating was assigned effective April 15, 2002. In January 2007, he filed a claim for an increased rating, which was initially denied in a November 2007 rating decision. In a May 2018 rating decision, the RO awarded a 20 percent disability rating effective January 8, 2007, the date of the increased rating claim. The RO has evaluated the Veteran’s right shoulder disability under DC 5203-5201. DC 5201 provides a 20 percent rating for a major or minor extremity where range of motion is limited to lifting an arm to shoulder level. Where limitation of the arm is limited to midway between a veteran’s side and shoulder level, DC 5201 provides a 30 percent evaluation for a major extremity and a 20 percent evaluation for a minor extremity. Where limitation of the arm is limited to 25 degrees from the side, DC 5201 affords a 40 percent rating for a major extremity and a 30 percent evaluation for a minor extremity. DC 5201 does not provide separate ratings for limitations on flexion, extension, abduction and rotation, but rather permits only a single rating for limitation of motion of an arm. Yonek v. Shinseki, 722 F.3d 1355, 1359 (Fed. Cir. 2013). DC 5203 provides for a 10 percent rating for malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement. A 20 percent rating is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. DC 5203 provides that the shoulder disability may alternatively be rated on impairment of function of the contiguous joint. DC 5200 provides for the evaluation of a shoulder or arm disability if there is ankylosis of the scapulohumeral articulation. As there is no evidence that the Veteran has ankylosis of the right shoulder, DC 5200 is not for application. Shoulder disabilities may also be evaluated pursuant to DC 5202, as other impairment of the humerus. When that Code is used to evaluate a dominant limb, a 30 percent evaluation is assigned when there is malunion of the humerus with marked deformity or with recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. Id. A 50 percent evaluation is assigned for the major extremity, when there is fibrous union. A 60 percent evaluation for the major extremity is warranted with a showing of nonunion of the humerus (false flail joint), and an 80 percent evaluation for the major extremity is assigned with a showing of loss of head of the humerus (flail shoulder). Id. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). The Veteran initially contended that his right shoulder disability warranted a higher rating due to dislocation. The RO awarded a higher rating under DC 5203, for dislocation of the right shoulder, in May 2018. However, as this is not a full grant of the benefits sought on appeal, the Board will evaluate whether a rating in excess of 20 percent is appropriate at any point throughout the period on appeal. As an initial matter, the evidence of record indicates that the Veteran is right hand dominant. In October 2007, the Veteran was afforded a VA examination for his right shoulder disability. He reported experiencing stiffness, lack of endurance, and dislocation of the right collar bone. He also stated that he heard a popping sound in his shoulder. He denied weakness, swelling, heat, giving way, redness, locking, and fatigability. The Veteran described the pain as constant, oppressing, sharp, and aching. Flexion and abduction were to 160 degrees, with external and internal rotation to 90 degrees. His right shoulder was additionally limited by repetitive use, which resulted in fatigue, weakness, and lack of endurance. There was no additional limitation of motion after repetitive use. The examiner noted that the right shoulder disability resulted in difficulty with heavy lifting, lifting overhead, as well as laying or sleeping on the right side. VA treatment records from May 2009 and July 2009 reflect that the Veteran demonstrated flexion and abduction to no less than 130 degrees and 110 degrees, respectively. In July 2012, the Veteran underwent another VA examination to evaluate his right shoulder. He denied experiencing flare-ups. Flexion and abduction were to 180 degrees, with no objective evidence of pain. The Veteran could perform repetitive use testing without additional limitation of range of motion or functional loss. There was no evidence of localized tenderness, pain on palpation, or guarding of the right shoulder. Muscle strength testing was normal and there was no evidence of ankylosis. The examiner found no indication of a rotator cuff condition. There was no history of mechanical symptoms, recurrent dislocation, an acromioclavicular (AC) joint condition, or any other impairment of the clavicle or scapula. There was no tenderness on palpation of the AC joint. Additionally, the Veteran had not had a total shoulder joint replacement or any other shoulder surgery. The examiner concluded that the right shoulder condition did not impact the Veteran’s ability to work. At the March 2014 Board hearing, the Veteran testified that his right shoulder pain impaired his ability to lift objects and sleep. See March 2014 Board Hearing Testimony p. 7-9. He further reported experiencing a popping feeling in his right shoulder. In March 2015, the Veteran attended a third VA examination for his right shoulder disability. He denied experiencing flare-ups or functional loss. Flexion was to 170 degrees, with abduction, internal rotation and external rotation all to 90 degrees. No pain was noted upon examination. There was no evidence of pain with weight bearing, and the range of motion did not contribute to functional loss. Additionally, there was no objective evidence of localized tenderness, pain on palpation, or crepitus of the right shoulder. The Veteran could perform repetitive use testing and repeated use over time without additional function loss or limitation of motion. Muscle strength testing was normal and there was no evidence of ankylosis. There was no evidence of a rotator cuff condition, and no suspicions of shoulder instability, dislocation, or labral pathology. Although the examiner noted mild age-related bilateral degenerative joint disease, it did not affect range or motion or result in tenderness on palpation of the AC joint. There was no loss of head (flail shoulder), nonunion, fibrous union, or malunion of the humerus. The examiner concluded that the shoulder condition did not impact the Veteran’s functional ability. Most recently, in October 2017, the Veteran was afforded another VA examination to evaluate the severity of his right shoulder disability. The examiner noted a diagnosis of anterior sternoclavicular dislocation of the right shoulder. The Veteran reported intermittent sharp pain, as well as difficulty sleeping and lifting objects with his right side due to pain. However, he denied experiencing flare-ups. Flexion was to 90 degrees, with abduction to 100 degrees. External rotation was to 80 degrees, with internal rotation to 60 degrees. All ranges of motion exhibited pain. The abnormal range of motion resulted in the Veteran’s inability to lift and reach overhead. Although there was evidence of pain with weight bearing, non-weight bearing, and passive motion, there was no sign of crepitus. The examiner noted evidence of moderate localized tenderness or pain on palpation of the anterior joint. The Veteran could complete repetitive use testing with flexion to 80 degrees, as well as pain and lack of endurance. He was not evaluated after repetitive use over time or a flare-up, but the examiner concluded that the examination was not medically consistent or inconsistent with the Veteran’s reported functional loss in such circumstances. Furthermore, the examiner was unable to determine whether pain, weakness, fatigability or incoordination limited functional ability or resulted in limited range of motion with repeated use over time or flare-ups due to a lack of direct observation. The examination report documented weakened movement with abduction. Muscle strength was normal in forward flexion, but slightly reduced in abduction. However, the Veteran did not have muscle atrophy. There was no evidence of ankylosis, shoulder instability, recurrent dislocation, or labral pathology. The examiner noted a suspected rotator cuff condition. There was evidence of dislocation of the AC joint, which affected range of motion and resulted in tenderness on palpation. However, there was no evidence of malunion or nonunion of the clavicle or scapula. Additionally, there was no evidence of loss of head, nonunion, fibrous union, or malunion of the humerus. There was no history of surgeries related to the right shoulder. The examiner noted difficulty lifting objects, but that the Veteran had not missed work due to his right shoulder in the past year. Following a review of the record, the Board finds that a rating in excess of 20 percent is not warranted. In this regard, the evidence of record during the entire appeal period does not reveal restriction in motion of the Veteran’s right shoulder to midway between side and shoulder level and there was no indication that he had recurrent dislocations, fibrous union or nonunion, loss of the humeral head, or malunion of the humerus with marked deformity, (the symptoms required for a higher rating under applicable DCs.) Indeed, the record shows, at worst, flexion limited to 80 degrees and abduction limited to 90 degrees. Ankylosis is not present and shoulder motion is not limited to the degree required for a higher rating, even when considering flare ups and functional loss after repetitive use. The Board acknowledges the arguments at the hearing of the Veteran and his representative that the Veteran suffers from worsening symptoms and limited range of motion. Here, however, when measured, the record simply does not show limitation of motion in the right shoulder to midway between the Veteran’s side and shoulder, malunion of the humerus with marked deformity, recurrent dislocation of a scapulohumeral joint with frequent episodes of guarding, fibrous union, nonunion, or loss of head of the humerus. As noted above, the Board has also considered the effects of flare-ups or additional functional loss after repeated use of the Veteran’s shoulder over time. As the Veteran was not observed after repetitive use over time or during a flare-up at the time of the August 2017 VA examination, the examiner was unable to assess any additional functional loss in terms of range of motion loss, and, thus, it was infeasible to anticipate or predict limitation in function or motion, in specific degrees, during flare-ups or after repetitive use over time. A higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102. Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating. Id. Thus, a higher evaluation cannot be awarded based on speculation of additional functional loss during after repetitive use over time or flare-ups. The evidence and the competent and probative opinions of the medical examiners in this case do not suggest that flare-ups or repeated use would lead to the limitation of motion or the functional equivalent of frequent dislocations, nonunion, malunion, fibrous union, or loss of the head of the humerus that would warrant a higher evaluation. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. To the extent the VA examinations reviewed do not include specific findings as required by the Court’s holdings in Sharp, the Board finds that, because flare-ups of the right shoulder have not been demonstrated by the record or described by the Veteran, additional testing to evaluate the impact of flare-ups and pain on limitation of motion is infeasible. For the reasons stated above, the Board finds that the preponderance of the evidence of record indicates that the criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. As such, there is no reasonable doubt to resolve in the Veteran’s favor and his claim for an increased evaluation must be denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel