Citation Nr: 18149066 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-09 846 DATE: November 8, 2018 ORDER Entitlement to an initial evaluation in excess of 10 percent for service-connected left shoulder disability, prior to July 19, 2017, is denied. Entitlement to an evaluation in excess of 20 percent for service-connected left shoulder disability, beginning July 19, 2017, is denied. FINDINGS OF FACT 1. Prior to July 19, 2017, the Veteran’s left (minor) shoulder range of motion was not limited to shoulder level. 2. Beginning July 19, 2017, the Veteran’s left (minor) shoulder range of motion was not limited to 25 degrees from the side. CONCLUSIONS OF LAW 1. Prior to July 19, 2017, the criteria for an evaluation in excess of 10 percent for service-connected left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Codes 5010-5201 (2017). 2. Beginning July 19, 2017, the criteria for an evaluation in excess of 20 percent for service-connected left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Codes 5010-5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to January 1987. In his February 2016 VA Form 9, the Veteran requested a Board hearing and was scheduled for an October 2018 Board hearing. See October 2018 Correspondence. He did not appear for his October 2018 Board hearing. Increased Rating Disability ratings are determined by applying the criteria set forth in 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. 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. “Staged” ratings are appropriate for any rating claim when 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. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Left shoulder In a November 2014 rating decision, service connection for acromioclavicular joint separation with rotator cuff tear and glenohumeral joint instability, left (claimed as: left shoulder/subacromial impingement/tendon rupture), status post arthroscopic repair, non-dominant, was granted and assigned a 10 percent evaluation, effective January 15, 2014. The Veteran filed a December 2014 notice of disagreement (NOD). In a September 2017 rating decision, an increased evaluation from 10 percent to 20 percent for service-connected acromioclavicular joint separation with rotator cuff tear and glenohumeral joint instability, left with osteoarthritis (claimed as: left shoulder/subacromial impingement/tendon rupture), status post arthroscopic repair, non-dominant), was granted, effective July 19, 2017. The Veteran contends a higher rating for his left shoulder disability is warranted. See February 2016 VA Form 9. The Veteran’s left shoulder disability is currently assigned a 10 percent rating prior to July 19, 2017, and 20 percent rating beginning July 19, 2017, under Diagnostic Codes 5010-5201. See September 2017 rating code sheet. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. Diagnostic Code 5010 applies to traumatic arthritis and states that such is evaluated under the criteria for Diagnostic Code 5003, which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Code, a rating of 10 percent is applied for each major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints or two of more minor joint groups without exacerbations. The Board notes that the Veteran is right hand-dominant. See September 2017 VA examination report. Thus, his left shoulder is the minor shoulder. The normal range of motion of the shoulder for flexion and abduction is from 0 degrees at the side to 180 degrees overhead. 38 C.F.R. § 4.71, Plate I. Shoulder level is at 90 degrees, and exactly midway between the side and shoulder level is at approximately 45 degrees. Under Diagnostic Code 5201, which governs limitation of motion for the arm, a 20 percent rating is assigned for limitation of the minor or major arm to shoulder level. If there is limitation of the shoulder midway between side and shoulder level, a 20 percent rating is also assigned for the minor arm, but a 30 percent rating is assigned for the major arm. If the limitation is 25 degrees from the side, a 30 percent rating is assigned for the minor arm and a 40 percent rating is assigned for the major arm. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see also 38 C.F.R. § 4.71, Plate I. Ankylosis of the scapulohumeral articulation is addressed under Diagnostic Code 5200 and other impairment of the humerus is covered under Diagnostic Code 5202. Impairment of the scapula is addressed under Diagnostic Code 5203. However, the record does not show such Diagnostic Codes are relevant for the Veteran’s left shoulder disability, as further discussed below. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Pursuant to 38 C.F.R. § 4.40, a 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. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability that affect joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. See 38 C.F.R. § 4.45. The Board notes, however, that the Court of Appeals for Veterans Claims has held that 38 C.F.R. § 4.40 does not require a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). After a full review of the record, and as discussed below, the Board denies a disability rating in excess of 10 percent for the period prior to July 19, 2017, and denies a disability rating in excess of 20 percent beginning July 19, 2017. Turning to the evidence of record prior to July 19, 2017, upon November 2014 VA shoulder examination, the Veteran reported flare-ups, described as severe pain that requires him to rest until pain passes. See November 2014 VA examination report. He reported having functional loss or functional impairment, described as not being able to do any heavy lifting, cannot raise arm above his head, feels weak in the left arm, and has constant shoulder pain. Initial range of motion testing revealed flexion to 140 degrees, abduction to 140 degrees, external rotation to 80 degrees, and internal rotation to 80 degrees. The Veteran was not able to perform repetitive use testing due to pain. Pain was noted on active and passive range of motion testing and pain contributed to functional loss or additional limitation of range of motion. Pain was noted when the joint was used for weight-bearing and nonweight-bearing and pain contributed to functional loss or additional limitation of range of motion. The left shoulder did not have a history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. A left shoulder clavicle, scapula, acromioclavicular (AC) joint or sternovalavicular joint condition was not suspected. The Veteran did not have loss of head (flail shoulder), nonunion (flase fail shoulder, or fibrous union of the humerus. He did not have malunion of the humerus with moderate or marked deformity. The Veteran did not have ankylosis of the left shoulder. Further, March 2014 VA physical therapy noted indicated the Veteran’s had left shoulder range of motion reduced to flexion to 141 degrees, abduction to 108 degrees, internal rotation to 80 degrees, and external rotation to 80 degrees. Based on the above, the Veteran’s most reduced range of motion for flexion was 140 degrees and for abduction was 108 degrees. As the Veteran’s range of motion was not reduced to limitation of the minor (left shoulder) to shoulder level, a 20 percent rating is not warranted. Pursuant to Diagnostic Code 5003, when limitation of motion of the specific joint involved is noncompensable under the appropriate Diagnostic Codes, as here, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Accordingly, for the period prior to July 19, 2017, the Veteran’s appropriate disability rating is 10 percent. For the period beginning July 19, 2017, upon July 2017 VA examination, the Veteran reported flare-ups occurred approximately three times a week, lasting for about one day, and he described the symptoms as causing 9/10 pain which are brought on by no particular pattern. The Veteran did not report having any functional loss or functional impairment of the left shoulder (regardless of repetitive use). Left shoulder initial range of motion testing revealed flexion to 100 degrees, abduction to 100 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. Range of motion contributed to function loss, noted as limitations in the range of motion of a particular joint, can impair function and the ability to perform usual daily activities. The limited range of motion has a reduction in the shoulder and arm’s ability to move, and impairs function and the ability to perform usual daily activities, which require full range of motion of the shoulder and arm. Pain was noted on flexion, abduction, and internal rotation, and causes functional loss. There was no evidence of pain with weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. The Veteran did not have ankylosis of the left shoulder. Left shoulder instability, dislocation, or labral pathology were not suspected. He did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus and did not have malunion of the humerus with moderate or marked deformity. Based on the above, for the period beginning July 19, 2017, the Veteran’s most reduced range of motion for flexion was 100 degrees and for abduction was 100 degrees. As the Veteran’s range of motion was not reduced to limitation to 25 degrees from the side for the left (minor) shoulder, a 30 percent rating is not warranted. The Board has considered whether a higher or separate rating may be warranted under an alternative Diagnostic Code, and finds that Diagnostic Code 5201 remains the most appropriate Diagnostic Code under which to rate the service-connected left shoulder disability. See Butts v. Brown, 5 Vet. App. 532 (1993). The Board has considered the applicability of Diagnostic Codes 5200, 5202, and 5203; however, on examinations in November 2014 and July 2017, the examiners specifically ruled out any ankylosis. Further, the Veteran’s left shoulder did not have a history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. A left shoulder clavicle, scapula, acromioclavicular (AC) joint or sternovalavicular joint condition was not suspected. The Veteran did not have loss of head (flail shoulder), nonunion (flase fail shoulder, or fibrous union of the humerus. He did not have malunion of the humerus with moderate or marked deformity. (Continued on the next page)   In conclusion, the Board finds that the criteria for a disability rating in excess of 10 percent for the period prior to July 19, 2017, is not more nearly approximated, and the criteria for a disability rating in excess of 20 percent, beginning July 19, 2017, is not more nearly approximated. Therefore, the claim for increased ratings for left shoulder disability is denied. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel