Citation Nr: 18152447
Decision Date: 11/21/18	Archive Date: 11/21/18

DOCKET NO. 15-12 700
DATE:	November 21, 2018
ORDER
Entitlement to an increased disability rating in excess of 10 percent for residuals of right pectoris tear and shoulder strain (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 shoulder level. 
CONCLUSION OF LAW
The criteria for a rating in excess of 10 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, 4.71(a), Diagnostic Code (DC) 5201-5019 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1987 to June 2007.
This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
Entitlement to an increased disability rating in excess of 10 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 January 2008, and an initial noncompensable disability rating was assigned effective July 1, 2007. In August 2010, he filed a claim for an increased rating. In an April 2012 rating decision, the RO awarded a 10 percent disability rating effective August 4, 2010, the date of the increased rating claim, based on painful motion of the right arm under 38 C.F.R. § 4.59, which allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. The RO has evaluated the Veteran’s right shoulder disability under DC 5201-5019. 
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 contends that his right shoulder disability warrants a higher rating. The RO awarded a higher rating under DC 5201-5019, for painful motion of the right shoulder, in April 2012. However, as this is not a full grant of the benefits sought on appeal, the Board will evaluate whether a rating in excess of 10 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 February 2011, the Veteran underwent a VA examination for his right shoulder disability. He reported slowed motion, stiffness, weakness, increased pain with lifting, and some decrease in overhead motion. He also stated that he had trouble sleeping due to shoulder discomfort. There were no reports of deformity, giving way, instability, incoordination, episodes of dislocation or subluxation, locking, inflammation, or effusion. The Veteran reported weekly flare-ups that were moderate in severity and lasted for up to two days. The flare-ups were caused by increased activity, position changes, and lifting. Flexion was to 160 degrees, with pain between 130 degrees to 160 degrees. Abduction was to 150 degrees, with pain between 120 degrees and 150 degrees. Right internal rotation was to 80 degrees, with pain from 50 degrees to 80 degrees. Right external rotation was also to 80 degrees, with pain from 40 degrees to 80 degrees. Although there was objective evidence of pain following repetitive motion, there was no additional limitation of motion after three repetitions. There was no evidence of ankylosis of the right shoulder. Additionally, there was no evidence of abnormal weight-bearing, loss of bone or part of a bone, recurrent shoulder dislocations, or inflammatory arthritis. 
In April 2018, the Veteran was afforded another VA examination to evaluate the current severity of his right shoulder disability. He reported experiencing constant daily pain, with flare-ups occurring after periods of lifting and lasting for 30 minutes. He further stated that he had functional impairment due to pain, as well as limited range of motion during flare-ups. Flexion and abduction were to 150 degrees, with external and internal rotation to 30 degrees. The limited range of motion contributed to functional loss due to pain. The examiner noted pain on palpation of the right shoulder joint, but no sign of crepitus. There was no evidence of pain with weight-bearing or non weight-bearing. The Veteran was able to perform repetitive use testing, with at least three repetitions, with no additional loss of function of range of motion. Although the Veteran was not observed during a flare-up or after repetitive use over time, the examiner determined that the examination was neither medically consistent or inconsistent with his statements describing functional loss during these instances. Additionally, the examiner was unable to determine which factors would limit functional ability under such conditions due to the lack of direct observation of these circumstances. However, the examiner did note less movement than normal due to pain. Muscle strength testing resulted in active movement against some resistance, but there was no evidence of muscle atrophy or ankylosis. The examiner found no evidence of a rotator cuff condition, shoulder instability, dislocation, or labral pathology. Furthermore, there were no findings of a clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint condition. The Veteran did not have loss of head, nonunion, fibrous union, or malunion of the humerus. There was no history of surgical procedures related to the right shoulder. The Veteran used a support brace on a constant basis for his shoulder pain. 
Following a review of the record, the Board finds that a rating in excess of 10 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 shoulder level and there is no indication that he experiences recurrent dislocations, fibrous union or nonunion, loss of the humeral head, or malunion of the humerus with marked deformity, or impairment of the clavicle or scapula (the symptoms required for a higher rating under applicable DCs.) Indeed, the record shows, at worst, flexion limited to 150 degrees and abduction limited to 150 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 contentions of the Veteran that he 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 shoulder level, 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, ankylosis, or impairment of the clavicle or scapula. 
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 April 2018 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, ankylosis or impairment of the clavicle or scapula 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 the examinations of record are adequate for rating purposes and that a higher disability rating is not warranted based on limitation of motion, even when considering the functional effects of pain, to include during flare-ups and after repetitive use. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed. Here, the Veteran consistently reported flare-ups at his VA examinations, primarily resulting from increased activity and overhead lifting. He generally described them as moderate in severity and lasting for a duration of one to two days. Furthermore, the Veteran did not report that he had loss of motion to the degree required for a rating higher than 10 percent due to flare-ups during the appeal period. 
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 10 percent for the 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.
Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
 
MICHAEL E. KILCOYNE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Erin J. Trojanowski, Associate Counsel