Citation Nr: 18152892 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 10-17 433 DATE: November 27, 2018 ORDER Entitlement to an initial rating of 30 percent for right shoulder disability, to include degenerative joint disease, (hereinafter “right shoulder disability”) is granted subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, for the entire period on appeal, the Veteran’s service-connected dominant right shoulder disability is productive of limitation of motion midway between the side and shoulder level. CONCLUSION OF LAW The criteria for initial rating of 30 percent for right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Codes (DCs) 5003-5201 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1987 to April 1990 and April 1991 to October 1993. These matters are on appeal from an August 2009 rating decision and were previously remanded by the Board of Veterans' Appeals (Board) in May 2014. In January 2013, the Veteran testified at a videoconference Board hearing before the undersigned. The Board notes that the Veteran filed a timely notice of disagreement (NOD) in November 2009, contending that he is entitled to an initial rating in excess of 10 percent for a right shoulder disability. The July 2012 rating decision assigned a 20 percent rating for a right shoulder disability from October 14, 2009. Thereafter, the September 2018 rating decision assigned an earlier effective date of February 20, 2009 for an initial rating of 20 percent for a right shoulder disability. As this initial rating is not the maximum allowable, the issue remains on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). Additionally, the September 2018 rating decision assigned a separate 30 percent rating for impairment of the right humerus from May 8, 2017. As the Veteran indicated in a September 2018 statement that he was satisfied with the 30 percent rating, that issue is no longer on appeal. The Veteran, however, indicated in the same September 2018 statement that he was not satisfied with the effective date of the 30 percent rating for impairment of the right humerus. The Board notes that the Veteran has not filed an NOD on the appropriate form (VA Form 21-0958, “Notice of Disagreement”) with regard to the 30 percent rating assigned by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter. 38 C.F.R. §§ 20.200, 20.201, 20.302 (2018). Finally, the Board notes that a September 2018 rating decision denied service connection for left ear hearing loss. To date, the Veteran has yet to file an NOD; therefore, this issue is not before the Board at this time. Higher Initial 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 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2018). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2018). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating in excess of 20 percent for a right shoulder disability The Veteran contends that he is entitled to a higher initial rating for his service-connected right shoulder disability, which is currently rated as 20 percent disabling under DCs 5003-5021. See 38 C.F.R. § 4.27 (2018) (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). This hyphenated diagnostic code may be read to indicate that degenerative arthritis is the service-connected disorder, and it is rated as if the residual condition is limitation of motion of the arm under DC 5201. Under 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 (2018). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (DC 5200), limitation of motion of the arm (DC 5201), other impairment of the humerus (DC 5202), and impairment of the clavicle or scapula (DC 5203). The terms “major” and “minor” are used in the rating criteria to refer to the dominant or non-dominant upper extremity. 38 C.F.R. § 4.69 (2018). As the evidence of record reflects the Veteran is right-hand dominant, ratings for the major side will be considered. Under DC 5200, a 30 percent rating is assigned for favorable ankylosis of scapulohumeral articulation with abduction to 60 degrees. 38 C.F.R. § 4.71a (2018). A 40 percent rating is assigned for intermediate between favorable and unfavorable ankylosis of scapulohumeral articulation. Id. A maximum 50 percent rating is assigned for unfavorable ankylosis of scapulohumeral articulation with abduction limited to 25 degrees from side. Id. Under DC 5201, a 20 percent rating is assigned for limitation of motion of the arm at shoulder level (i.e., motion limited to 90 degrees). 38 C.F.R. § 4.71a (2018). A 30 percent rating is assigned for limitation of motion of the arm midway between side and shoulder level (I.e., motion limited from 45 to 90 degrees). Id. A maximum 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from side. Id. Under DC 5202, a 20 percent rating is assigned for malunion of the humerus with moderate deformity; or recurrent dislocation at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. 38 C.F.R. § 4.71a (2018). A 30 percent rating is assigned for malunion of the humerus with marked deformity; or recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements. Id. A 50 percent rating is assigned for fibrous union of the humerus. Id. A 60 percent rating is assigned for nonunion of the humerus (false flail joint). Id. A maximum 80 percent rating is assigned for loss of head of the humerus (flail shoulder). Id. The Board notes, however, that a separate 30 percent evaluation for impairment of the Veteran’s right humerus, stemming from his service-connected right shoulder disability, was assigned under DC 5202 by way of a September 2018 rating decision. Thus, this DC is not applicable regarding the evaluation of the Veteran’s service-connected right shoulder disability and will not be discussed further. Under 5203, a 10 percent rating is assigned for malunion of the clavicle or scapula; or nonunion of the clavicle or scapula without loose movement. 38 C.F.R. § 4.71a (2018). A maximum 20 percent rating is assigned for nonunion of the clavicle or scapula with loose movement; or dislocation of the clavicle or scapula. Id. The standard range of motion of the shoulder is 0 to 180 degrees for flexion (forward elevation); 0 degrees to 180 degrees for abduction; 0 degrees to 90 degrees for internal rotation; and 0 degrees to 90 degrees for external rotation. 38 C.F.R. § 4.71, Plate I (2018). Forward flexion and abduction to 90 degrees reflects shoulder level. Id. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. Based on the evidence of record, the Board finds that an initial rating of 30 percent for the Veteran’s service-connected right shoulder disability is warranted. A June 2009 VA examination report reflects the Veteran reported constant pain, weakness, and stiffness in his right shoulder and that the weight of his arm alone caused shoulder pain. His right shoulder forward flexion was to 142 degrees. Post-service VA treatment records from October 2009 note right shoulder forward flexion to 90 degrees. A May 2012 VA examination report shows the Veteran reported right shoulder flare-ups accompanied by constant pain. His right shoulder forward flexion was to 120 degrees with painful motion beginning at 90 degrees. Post-service private treatment records from July 2012 note the Veteran experienced marked decrease range of motion in his right shoulder. An October 2014 VA examination report reflects the Veteran reported flare-ups and pain in his right shoulder and stated that he experiences functional loss if he attempts to lift above shoulder level. His right shoulder forward flexion was to 70 degrees. A May 2017 VA examination report shows the Veteran reported constant pain in his right shoulder and difficulty lifting anything heavier than one gallon of milk. His right shoulder forward flexion was to 70 degrees after initial testing and to 65 degrees after repetitive use testing. Throughout the period on appeal, the Veteran’s right shoulder disability was manifested by pain and limitation of motion. Motion in his right shoulder was limited to, at worse, 65 degrees forward flexion. Taking into consideration such factors as reported flare-ups and functional impairment that prevented the Veteran from lifting and carrying items, resolving reasonable doubt in the Veteran’s favor, his right shoulder disability more closely approximates the criteria for an initial rating of 30 percent under DC 5201. The Board has considered whether an initial rating of 40 percent under DC 5201 is warranted for the Veteran’s right shoulder disability, however, the evidence of record does not reflect limitation of right shoulder motion limited to 25 degrees from the side, which is required for the maximum 40 percent rating under that diagnostic code. As such, an initial rating of 30 percent is warranted for the Veteran’s right shoulder disability under DC 5201. The Board has also considered whether the Veteran’s right shoulder disability warrants separate evaluations under DCs 5200 and 5203. As the Veteran’s post-service treatment records and VA examinations from 2009 to 2018 do not reflect ankylosis of scapulohumeral articulation, a separate evaluation under DC 5200 is not warranted in this case. Additionally, while the May 2012 VA examination report shows evidence of dislocation of the Veteran’s clavicle consistent with a 20 percent rating, here, the Veteran’s service-connected right shoulder disability has already been assigned a higher initial rating of 30 percent for limitation of motion of the right arm under DC 5201. To assign a separate, additional 20 percent rating under DC 5203 would constitute pyramiding, as the impairment of function to the right shoulder under DCs 5201 and 5203 are overlapping. Here, the manifestations of the Veteran’s right shoulder disability are not shown to be separate and distinct in this case, and evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). Thus, a separate 20 percent evaluation for the Veteran’s right shoulder disability is not warranted under DC 5203. In sum, resolving reasonable doubt in favor of the Veteran, the Board finds that, for the entire period on appeal, an initial rating of 30 percent, but no higher, is warranted for the Veteran’s right shoulder disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.71a, DC 5201; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for right ear hearing loss is remanded. The September 2013 VA examiner opined that it is at least as less likely as not that the Veteran’s right ear hearing loss was caused by or a result of an event in military service. In support of this opinion, the examiner noted that the Veteran’s hearing during audiograms for his enlistment and separation examinations were within normal limits. As the VA examiner’s rationale relied solely on the absence of hearing loss within the Veteran’s service treatment records as the basis for his opinion, the Board finds the September 203 VA examination to be inadequate. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). As such, a new VA examination is required to address the Veteran’s claim for right ear hearing loss. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran’s right ear hearing loss. A complete history from the Veteran should be obtained and recorded. All indicated studies, including audiometric testing and speech discrimination testing, must be accomplished. The rationale for all opinions should be provided. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right ear hearing loss is etiologically related to the Veteran’s active service? In rendering the requested opinion, the examiner should consider the Veteran’s March 2013 Board hearing testimony and reported in-service occupational duties. 2. After completing all indicated development, the AOJ should readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Houle, Associate Counsel