Citation Nr: 18150292 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 08-29 983 DATE: November 14, 2018 ORDER Entitlement to a schedular disability rating in excess of 30 percent for right shoulder status post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints is denied. Entitlement to an extraschedular rating for right shoulder status post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints is denied. Entitlement to a separate disability rating of 30 percent for impairment of the right humerus from September 1, 2007 to September 26, 2015, is granted. FINDINGS OF FACT 1. Right shoulder status post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints has not resulted in limitation of motion of the right shoulder to 25 degrees from the side. 2. The Veteran’s right shoulder disability includes complete loss of motion after repetitive testing in internal rotation and less than normal external and internal rotation, but those symptoms do not XXX. 3. For the period from September 1, 2007 to September 26, 2015, the Veteran’s impairment of the humerus was manifested by recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for right shoulder status post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5299-5201 (2018). 2. The criteria for an extraschedular rating for the Veteran’s right shoulder status post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321 (2018). 3. The criteria for a separate rating of 30 percent for impairment of the right humerus for the period from September 1, 2007 to September 26, 2015 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5003-5202 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to March 1992, and from October 2003 to August 2014, as well as subsequent period of service with the Michigan Army National Guard (ANG) until 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which granted service connection for a right shoulder disability, and assigned a temporary total rating, effective July 17, 2007, and a noncompensable (0 percent) rating, effective September 1, 2007. In September 2008, the RO granted a 20 percent rating for the service-connected right shoulder disability, effective September 1, 2007. Later, in an October 2013 rating decision, the RO granted a 30 percent rating for status post repeated rotator cuff tear secondary to a tear with calcific tendonitis with osteoarthritic changes of the acromioclavicular and glenohumeral joints (previously rated as a right shoulder disorder) (major dominant), effective January 20, 2012. The Veteran continued his appeal for a higher rating. In October 2014, the Board issued a decision denying a rating in excess of 20 percent from September 1, 2007 to January 19, 2012, and denying a rating greater than 30 percent thereafter, for the service-connected right shoulder disability. The Board also remanded the issues of entitlement to an extraschedular rating for the service-connected right shoulder disability and entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). In May 2015, the VA Director of Compensation Service found that the medical evidence of record did not show any evidence to support an increased rating for a right should on an extraschedular basis. The Veteran appealed the Board’s denial of a higher rating for the service-connected right shoulder disability to the United States Court of Appeals for Veterans Claims (Court). The Court granted the joint motion for remand (JMR), vacating, in part, the October 2014 Board decision, and remanding the case to the Board for action consistent with the JMR in June 2015. By an October 2015 rating decision, the RO assigned a separate 30 percent rating for the Veteran’s right should disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5202, for impairment of the humerus, right shoulder, effective from September 26, 2015. In May 2015, the VA Director of Compensation Service found that the medical evidence of record did not show any evidence to support an increased rating for a right should disability on an extraschedular basis. The Board remanded the issues of entitlement to an initial rating in excess of 20 percent prior to January 20, 2012 and a rating in excess of 30 percent thereafter for the service-connected right shoulder disability and TDIU in August 2015. In a March 2016 decision, the Board granted a 30 percent rating for a right shoulder disability prior to January 2012 and denied a rating in excess of 30 percent thereafter. The Board also confirmed the VA Director of Compensation Service’s finding that extraschedular consideration was not warranted and denied a separate rating for impairment of the humerus, right shoulder prior to September 26, 2015 and a rating in excess of 30 percent September 26, 2015 to the present. TDIU was granted. The Board notes that the RO implemented the TDIU grant later in March 2016, assigning an effective date of September 26, 2015 for the award. The record shows the Veteran was notified of this action in April 2016, but that he did not initiate an appeal of the effective date. The Veteran appealed the Board’s March 2016 denial of entitlement to a rating in excess of 30 percent for service-connected status post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints and the denial of entitlement to a separate disability rating prior to September 26, 2015 to the Court. In March 2017, the Court granted the JMR, vacating the portion of the May 2016 Board decision which denied entitlement to a rating in excess of 30 percent for right shoulder disability (including the extraschedular matter) and denied entitlement to a separate disability rating prior to September 26, 2015, and remanding the Veteran's appeal to the Board for additional action consistent with the JMR. In July 2017, the Board remanded these claims for additional development consistent with the actions set out in the March 2017 JMR. The case is now before the Board for further appellate review. Rating in Excess of 30 percent for Right Shoulder Status Post Repeated Rotator Cuff Tears, with Calcific Tendonitis and Osteoarthritic Changes of The Acromioclavicular and Glenohumeral Joints Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran’s service-connected right shoulder status post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints has been rated at 30 percent since September 1, 2017 under Diagnostic Codes 5299-5201. See 38 C.F.R. § 4.27 (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). An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be 99 for all unlisted conditions. Id. The February 2017 JMR indicated that the VA examinations afforded the Veteran for his right shoulder disability were not compliant with Correia v. McDonald, 28 Vet. App.158 (2016). The Board remanded the claim in July 2017, in order to provide the Veteran with a VA examination that was in compliance with the holdings in Correia. Such examination was provided in August 2017 and provided the necessary evidence under Correia. Limitation of motion of the arm is evaluated under Diagnostic Code 5201. Ratings assigned pursuant to this code may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (nondominant) extremity. As the Veteran in the case at hand is right-handed, his service-connected right shoulder condition affects his major extremity, and will be evaluated accordingly. Under Diagnostic Code 5201, limitation of motion of the major extremity at the shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 30 percent rating for the major extremity. Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201. For reference, standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ( [I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria. ). The Veteran underwent VA examinations in July 2008, September 2013, September 2015, and August 2017. At his July 2008 examination, the Veteran reported chronic and constant pain in the right shoulder. The Veteran stated that there were no fully alleviating factors of his pain. The examiner noted that there was significant decreased range of motion, and that movement was restricted by pain. Range of motion was abduction to 80 degrees and flexion to 68 degrees. The Veteran was unable to do repetitive movements against resistance to determine the progressive decreased range of motion because of the significant pain. Additional loss of motion during flare-up could not be determined. The Veteran underwent a VA examination in September 2013. The examiner found that the Veteran did not have flare-ups. Flexion and abduction were to 90 degrees with pain at 90 degrees. After repetitive movement, the Veteran’s right shoulder flexion and abduction were reduced to 45 degrees. Functional loss was due to less movement than normal, weakened movement, and pain on movement. At his September 2015 examination, flexion and abduction were to 80 degrees. The examiner noted that pain was the cause of functional loss. After repetitive use testing with at least three repetitions, pain, weakness, and fatigue resulted in further limitation of flexion and abduction to 50 degrees each. The examiner noted that there was no ankylosis. The Veteran was provided with a VA examination in August 2017. The Veteran indicated that he has pain on any movement of the right shoulder. Flexion and abduction were to 70 degrees each. After three repetitions, flexion and abduction were limited to 50 degrees each. The examiner found that that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time. The examiner found that there was no evidence of pain on passive range of motion testing or when the joint was used in non-weight bearing. The examiner noted that the opposing joint was undamaged and that it was medically feasible to test the joint. Based on the above, the evidence shows that the right shoulder disability has not been manifested by limitation of movement of the right shoulder to 25 degrees from the Veteran’s side. Even factoring in pain, weakness, fatigability or incoordination, the Veteran’s right shoulder was not limited, even approximately, to 25 degrees from the Veteran’s side. None of the evidence (even the Veteran's reports during flare-ups) indicates limitation of motion of the Veteran’s right shoulder approximated a limitation of motion to 25 degrees from his side. Accordingly, an initial rating in excess of 30 percent under Diagnostic Code 5201 is not warranted. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Rating In its previous decision, the Board found that the Veteran’s 30 percent disability rating under Diagnostic Code 5201 for his right shoulder disability was manifested by symptomatology contemplated by the rating criteria which have been applied in this case. However, in the most recent JMR, the parties agreed that the Board did not address the evidence of record reflecting that Veteran had complete loss of motion after repetitive testing in internal rotation and less than normal external and internal rotation. See 38 C.F.R. § 4.71. As to consideration of an extraschedular rating, such consideration requires several inquiries. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. At 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. Such factors include "marked interference with employment" and "frequent periods of hospitalization." When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423 (2009). Rather, it must remand the claim to the AOJ for referral to the Director. Thun v. Peake, 22 Vet. App. 111 (2008). An extraschedular rating decision made by the Director is reviewable by the Board on a de novo basis. Kuppamala v. McDonald, 24 Vet. App. 447 (2016). In October 2014, the Board remanded this case in order for the AOJ to refer the question of whether the Veteran is entitled to an extraschedular rating for his service-connected right shoulder disability to VA’s Under Secretary for Benefits or VA's Director of Compensation Service for consideration. In May 2015, the Director of Compensation Service reviewed the record and found the evidence did not present such an exceptional or unusual disability picture as to render impractical the application of the rating schedule to the Veteran's service-connected right shoulder disability. Despite the foregoing, the Board is not precluded from reviewing the claim and assigning an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability subsequent to such determinations. See Floyd v. Brown, 9 Vet. App. 88 (1996); Thun, supra; see also Kuppamala, supra (Board reviews the Director's extraschedular decision de novo, and may, therefore, assign an extraschedular rating after the Director’s decision). The Board notes that Diagnostic Code 5201 only contemplates limitation of flexion or abduction; however, the evidence of record shows complete loss of motion after repetitive testing in internal rotation and less than normal external and internal rotation. At a July 2008 VA examination, the Veteran’s external rotation was limited to 40 degrees while internal rotation was at full range to 90 degrees. The Veteran was unable to perform repetitive movements due to pain. At his September 2013 VA examination, he was limited to 40 degrees external rotation, which was further limited to 45 degrees on repetitive movement. Internal rotation was to 90 degrees. At VA examinations in September 2015 and August 2017, external rotation was limited to 50 degrees and internal rotation was limited to 30 degrees. After repetitive movement, external rotation was limited to 30 degrees and internal rotation was limited to 0 degrees. Examiners noted that limitation was due to pain and fatigue. The parties to the Joint Motion are correct that the rating criteria do not mention internal or external rotation. Consequently, the first step in Thun is met. As to the second step, namely whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, the Board finds that the impairment in internal and external rotation do not involve marked interference with employment, frequent periods of hospitalization, or similar factors. Although the March 2016 Board decision granted the Veteran a TDIU (as the evidence was in equipoise) based on the right shoulder disorder, the Board did not at that time specify the particular symptoms supporting the award of a TDIU. The Board did, however, specify that the basis for the award of a TDIU was the reports of September 2015 VA examinations of the Veteran. Those examination reports show that one examiner concluded it was at least as likely as not that that the Veteran’s service-connected disorders, including the right shoulder disorder, impact the ability to obtain or maintain gainful “sedentary” employment; that examiner specifically referenced the functional limitations noted in an accompanying September 2015 VA examination by another examiner. Notably, that second examiner, while noting that the right shoulder disorder included little to no internal or external rotation, concluded that, functionally, the Veteran effectively had no use of his arm because of recurrent dislocations; the examiner did not mention the internal and external rotation restrictions as involved in the effective nonfunctioning of the right arm for employability purposes. In short, the September 2015 examiners, on whose reports the Board based the March 2016 grant of a TDIU, did not conclude that the internal and external rotation limitations affected employability or otherwise markedly interfered with employment; instead those examiners found that the recurrent dislocations were what interfered with employability. The recurrent dislocations are contemplated by the Veteran’s current 30 percent evaluation. Nor does the other evidence of record suggest that the internal and external rotation deficits markedly interfere with employment. Rather, the record shows that the aspects of the shoulder disorder which cause marked interference with employment are those for which a schedular rating adequately contemplates the symptom, namely the recurrent dislocations. Nor does the record reveal any history of frequent hospitalization on account of the limitation in internal or external rotation. The record does not otherwise show any factors associated with the limitation of rotation that are outside of the governing norms. Accordingly, the Board finds that the preponderance of the evidence is against assignment of an extraschedular evaluation in this case. Separate Rating for Impairment of the Humerus prior to September 26, 2015 By way of history, in a September 2014 Informal Hearing Presentation, the Veteran’s representative requested that he be awarded a separate rating under Diagnostic Code 5202 for recurrent dislocations of the scapulohumeral joint, in addition to his 30 percent rating for limitation of motion. In an October 2014 decision, the Board found that a grant of a separate rating under Diagnostic Code 5202 would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2015 JMR, the parties to the JMR agreed that, in its October 2014 decision, the Board failed to adequately address why Appellant’s limitation of motion, especially that associated with an arthritic shoulder joint such as in this case, and his recurrent shoulder dislocations, were not “distinct and separate” symptoms entitled to separate disability ratings. See Esteban, supra. In August 2015, the Board remanded the case for additional development, including a VA examination of the Veteran’s right shoulder, which was conducted in September 2015. In an October 2015 rating decision, the RO assigned a separate disability rating of 30 percent for impairment of the right humerus, effective September 26, 2015—the date of the VA examination, under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5202. In March 2016, the Board found that, prior to September 26, 2015, the Veteran’s right shoulder did not exhibit impairment of the humerus, to include malunion, deformity, or recurrent dislocation; thus, to assign a separate rating prior to this period would constitute pyramiding. The Veteran appealed the Board’s denial of a separate rating prior to September 26, 2015 to the Court. In a March 2017 JMR, the parties agreed that the Board did not adequately explain why a separate rating for impairment of the right humerus was not warranted prior to September 26, 2015. Upon review of the evidence of record, the Board finds that a separate rating of 30 percent for his impairment of the right humerus is warranted as of September 1, 2007. At his July 2008 VA examination, the examiner assessed recurrent right rotator cuff tear with multiple surgeries for repair and moderate to severe symptom persistence with significant limitation of motion and limitation of use. The examiner noted that the Veteran was holding his shoulder close to his chest wall. On examination, there was significant subacromial tenderness. At his September 2013 examination, the examiner noted that the Veteran had undergone four surgeries on his right shoulder, which had all failed. Upon review of the record, including the Veteran’s history, the September 2015 VA examiner noted that the Veteran had four surgeries to alleviate the ailment, but that X-rays revealed proximal migration of the humerus, which likely meant that the Veteran had rotator arthropathy and irreparable rotator cuff tear. The examiner noted that the Veteran continued to have limited function and high rate of dislocation of his dominant right arm, with chronic pain and continual decreased range of motion of the right arm. Under Diagnostic Code 5202, for the major arm, recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements warrant s 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5202. As this evidence shows that the Veteran has had continuing difficulty with dislocation of his right shoulder with pain and guarding, the Board finds a grant of the separate 30 percent disability rating for impairment of the right humerus effective September 1, 2007, is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Harrigan Smith