Citation Nr: 18152452 Decision Date: 11/23/18 Archive Date: 11/21/18 DOCKET NO. 11-04 383 DATE: November 23, 2018 ORDER From February 29, 2008, an initial 40 percent rating for decreased range of motion (ROM) for the right shoulder and mild narrowing of glenohumeral joint space (hereafter right shoulder condition) is granted. FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. The Veteran’s right shoulder disability has not been manifested by ankylosis or impairment of the humerus at any point during the appeal period. 3. The May 2017 VA examination is the only adequate VA examination report of record, at which time the Veteran achieved 30 degrees of right shoulder abduction. CONCLUSION OF LAW From February 29, 2008, the criteria for a 30 percent rating for the right shoulder condition are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from August 1978 to February 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which granted an initial evaluation of 10 percent for the Veteran’s right shoulder condition. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in September 2016. In January 2017, the Board remanded the appeal. From February 29, 2008, an initial 30 percent rating for the right shoulder condition is granted. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Where, as here, the rating appealed is the initial rating assigned with an award of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Staged ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code (DC) 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. Under the laws administered by VA, a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. In the instant case, the Veteran’s right shoulder is considered the major upper extremity. See April 2016 VA examination report. Limitation of motion of the arm at the shoulder is rated under DC 5201, which provides for a 20 percent rating when the range of motion of the major arm is limited to shoulder level, 30 percent when motion is limited midway between the side and shoulder level, and a maximum of a 40 percent evaluation when the range of motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees, and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). September 2007 VA treatment records document the Veteran seeking treatment for pain in his right shoulder and a diagnosis of arthritis. The Veteran again sought treatment for a painful right shoulder in October 2008. During both visits the Veteran was prescribed nonsteroidal anti-inflammatory drugs (NSAIDs) for pain. As noted in the Board’s January 2017 remand, the August 2009 and April 2016 VA examination reports are inadequate for rating purposes and therefore cannot be considered to evaluate his disability. During the Veteran’s September 2016 Board hearing, he testified that he believed that there was a malunion or dislocation of his clavicle, that his shoulder felt loose, was chronically painful, that he experienced between four and five flare-ups per week, weakness, bumps in his shoulder, and demonstrated that he could not move his shoulder more than about a quarter of the way up. The undersigned Veterans Law Judge noted that the Veteran’s movement was limited to approximately half-way between his side and shoulder height. See Board Hearing Transcript at 8. The Veteran was afforded an additional VA examination in May 2017 to comply with the January 2017 Board remand. The examination revealed that the Veteran was experiencing painful motion in all tested ranges of motion. Initial range of motion testing demonstrated that flexion was limited to 90 degrees. Abduction was limited to 30 degrees. External and internal rotation were limited to 70 degrees. There was no additional functional loss or other limitation of motion during observed repetitive use or repeated use over time. The Veteran did not report a flare-up at that time. There was no loss of strength or atrophy of muscle. The examiner noted the clavicle was affecting range of motion and imaging revealed degenerative arthritis. The examiner stated that there was no malunion, no deformity, and no dislocation of the humerus, and that the right shoulder condition affected repetitive lifting in terms of functional impact. Here, the Veteran’s testimony that his right shoulder was limited to just under midway between side and shoulder level at the Board hearing is supported by the May 2017 VA examiner’s findings, supporting assignment of a 30 percent rating for the entire appeal period. A rating in excess of 30 percent is warranted, as at worst, the Veteran’s right shoulder limitation of abduction was to 30 degrees, even after repetitive use testing. Regarding flare-ups, while the Veteran testified as to four or five flare-ups of his right shoulder disability per week, the Board finds this assertion lacks credibility, given his specific denial of any right shoulder flare-ups during all three VA examinations over the course of the lengthy appeal period. See August 2009, April 2016, and May 2017 VA examination reports. Accordingly, an initial rating in excess of 30 percent for the Veteran’s right shoulder disability is not warranted. The Board has also considered whether the Veteran warrants an increased rating based on other diagnostic criteria. However, there is no evidence of ankylosis (DC 5200), impairment of the humerus (DC 5202), or shoulder replacement (DC 5051). While the Veteran reports malunion or dislocation of his clavicle, he is not competent to do so, his assertion is not supported by objective medical testing during his VA examination, and his current 30 percent rating is in excess of the highest rating available under DC 5203 (impairment of the clavicle or scapula). Thus, DCs 5051, 5200, 5202, and 5203 are not applicable in this case. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.Rouse, Associate Counsel