Citation Nr: 18150376 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-39 325 DATE: November 15, 2018 ORDER Entitlement to an increased rating in excess of 20 percent for left shoulder impingement syndrome with bursitis and degenerative arthritis is denied. FINDING OF FACT The Veteran’s left shoulder impingement syndrome with bursitis and degenerative arthritis has not been manifested by limitation of motion of the left arm to 25 degrees from his side at any time during the period on appeal. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for left shoulder impingement syndrome with bursitis and degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1 – 4.7, 4.10, 4.71a, Diagnostic Codes 5019, 5201 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1986 to September 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by the Atlanta, Georgia, Regional Office (RO) of the United States Department of Veterans Affairs. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When reasonable doubt arises as to the degree of disability, such 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 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). That is to say, the Board must consider whether there have been times when his service-connected disability has been more severe than at others, and rate it accordingly. It should also be noted that, 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). 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. 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. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45 (2017). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). Evaluation in excess of 20 percent for left shoulder impingement syndrome with bursitis and degenerative arthritis The Veteran is seeking an evaluation in excess of 20 percent for his left shoulder impingement syndrome with bursitis and degenerative arthritis. The Veteran’s disability has been assigned a rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5019-5201. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The evidence of record shows that the Veteran is right handed, therefore his left arm is the minor extremity. See 38 C.F.R. § 4.69. Pursuant to the rating criteria associated with DC 5019, bursitis is rated on limitation of motion of the affected parts, as arthritis, degenerative. DC 5003, for degenerative arthritis, provides that degenerative arthritis that is established by x-ray finding will be rated on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The shoulder is considered a major joint. 38 C.F.R. § 4.45(f). Under the criteria associated with DC 5201, arm, limitation of motion of, a 20 percent rating is assigned for limitation of motion of the minor arm at shoulder level or limitation of motion of the minor arm to midway between side and shoulder level. A higher rating of 30 percent is assigned for limitation of motion of the minor arm to 25 degrees from the side. For VA purposes, normal range of arm motion is flexion 0 to 180 degrees; abduction 0 to 180 degrees; external rotation 0 to 90 degrees; and internal rotation 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I (2017). The Veteran underwent a VA shoulder and arm conditions examination in October 2012. The Veteran reported that due to his left arm disability he performed all activities with one arm. He also reported experiencing recurrent dislocation of the shoulder “and sets in automatically.” He described experiencing flare-ups manifested as severe pain with motion of the shoulder; he is afraid “to do any overhead activities” and cannot play with his kids. Physical examination of the right shoulder revealed flexion to 180 degrees, without evidence of painful motion; and abduction to 180 degrees, without evidence of painful motion. Flexion of the left shoulder was limited to 50 degrees with evidence of painful motion at 50 degrees; abduction was limited to 60 degrees with evidence of painful motion at 60 degrees. Left shoulder external rotation ends at 60 degrees with objective evidence of painful motion at 60 degrees, and internal rotation ends at 50 degrees with objective evidence of painful motion at 50 degrees. Repetitive use testing of right arm was normal; however repetitive use testing of the left arm was unable to be completed due to pain. The examiner noted that the Veteran experienced functional loss of the left shoulder due to less movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The examiner noted localized tenderness or pain on palpation of the left shoulder, as well as guarding of the left shoulder. The Veteran was unable to perform tests for rotator cuff conditions on his left arm. The examiner noted that the Veteran has not had any arthroscopic or other shoulder surgery. X-rays taken in conjunction with this examination revealed a normal left shoulder. Private treatment records show that in May 2012 the Veteran reported a history of a left shoulder injury in service. In November 2012 and September 2013, he reported shoulder pain. VA treatment records from September 2014 to March 2018 have been associated with the electronic file. A treatment note dated November 2014 reflects that the Veteran reported experiencing left shoulder pain that he described as a 4 out of 10, and experiencing limited movement of his left shoulder. The Veteran underwent a second VA shoulder and arm conditions examination in December 2014. The examiner noted the Veteran’s diagnoses of degenerative joint disease, left shoulder and impingement syndrome with subacromial bursitis, left shoulder. The Veteran reported that his shoulder has gotten worse over time, and that he has limited range of motion and painful motion. He reported that flare-ups impact his ability to lift, perform daily grooming and perform repetitive movements of the shoulder. The examiner noted that range of motion of the Veteran’s right shoulder was flexion to 140 degrees, without evidence of painful motion; and abduction to 130 degrees without evidence of painful motion. Range of motion of the Veteran’s left shoulder was flexion to 80 degrees, with objective evidence of painful motion beginning at 75 degrees; and left shoulder abduction to 65 degrees, with objective evidence of painful motion beginning at 55 degrees. Left shoulder external rotation ends at 80 degrees without objective evidence of painful motion; internal rotation ends at 75 degrees with no objective evidence of painful motion. The examiner noted that the Veteran did not have additional limitation in range of motion of the shoulder following repetitive-use testing. The examiner noted that the Veteran exhibited functional loss and/or functional impairment of the left shoulder manifested as less movement than normal, weakened movement and pain on movement. Test results for right rotator cuff conditions were all negative; left rotator cuff testing revealed a negative result for the Hawkins Impingement test, a positive result for the Empty-can test, and a positive result for external rotation/infraspinatus strength testing. The Veteran was unable to perform left shoulder lift-off subscapularis test. The examiner noted tenderness on palpation of the left AC joint. The Veteran has not had any surgery on his left shoulder. X-rays of the left shoulder taken in conjunction with this examination revealed early degenerative changes AC joint. The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran’s left shoulder disability does not more nearly approximate the rating criteria at a higher disability level. The evidence does not show that the Veteran’s symptoms meet the criteria for a 30 percent disability rating under DC 5019-5201 because the Veteran’s left shoulder disability does not limit the range of motion of his left arm to 25 degrees from his side. At his October 2012 examination, the Veteran exhibited flexion of his left shoulder to 50 degrees and at his December 2014 exam, flexion was to 80 degrees. The Board notes that both VA examinations addressed the DeLuca factors, and that even with consideration of the DeLuca factors, the Veteran’s flexion is greater than 25 degrees. Therefore, the currently assigned 20 percent disability rating contemplates the Veteran’s functional limitations and compensates him for such. See DeLuca. The Board has considered whether a higher, 30 percent, rating is warranted under the rating criteria for DC 5200 and DC 5202. See 38 C.F.R. § 4.71a. As the Veteran has not been shown to have scapulohumeral articulation, ankylosis of: intermediate between favorable and unfavorable, an increased evaluation of 30 percent under Diagnostic Code 5200 is not warranted. The Veteran has not been shown to have a fibrous union of the left humerus, and therefore an increased evaluation of 30 percent under Diagnostic Code 5202 is not warranted. Because the Veteran has not met the criteria for a rating in excess of 20 percent for his left shoulder disability at any time during the appeal period, a staged rating in excess of 20 percent for his left shoulder disability is not available. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has carefully reviewed and considered the Veteran’s statements, as well as all lay statements submitted by his family members regarding the regarding the severity of the Veteran’s left shoulder disability. The Board acknowledges that the Veteran believes that his disability is more severe than the assigned disability rating reflects. In this case, however, the competent medical evidence, offering detailed specific determinations that pertain to the rating criteria, is the most probative evidence in evaluating the Veteran’s left shoulder disability. The lay statements have been considered together with the probative medical evidence in evaluating the severity of the Veteran’s symptoms.   Accordingly, entitlement to an evaluation in excess of 20 percent for left shoulder impingement syndrome with bursitis and degenerative arthritis is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel