Citation Nr: 18152995 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-30 275 DATE: November 27, 2018 ORDER Entitlement to a rating in excess of 20 percent for left shoulder disability (residuals of left shoulder rotator cuff reconstruction with degenerative joint disease) is denied. FINDING OF FACT 1. The Veteran’s left shoulder is his nondominant/minor shoulder. 2. Throughout the rating period on appeal, the Veteran’s left shoulder disability is manifested by complaints of pain and limitation of motion; objective findings reflect that the range of motion has been greater than 25 degrees from the side. 3. The Veteran has not had fibrous union, nonunion, or loss of head of the humerus. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left (minor) shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1993 to August 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Entitlement to a rating in excess of 20 percent for a left shoulder disability Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The terms mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of such descriptive terms by medical examiners, although an element of the evidence to be considered by the Board, is not dispositive of an issue. Such evidence must be interpreted in light of the whole recorded history, reconciling the evidence into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. The Veteran is seeking an increased rating for his left shoulder disability which is rated under Diagnostic Code 5010-5201. Under Diagnostic Code 5201, limitation of motion of the minor shoulder provides a 20 percent rating is warranted for arm motion limited to shoulder level or midway between the side and shoulder level. A maximum 30 percent rating is warranted for arm motion limited to 25 degrees from side. Additional diagnostic codes provide ratings for the shoulder based on ankylosis (Diagnostic Code 5200), impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203). The evidence reflects that the Veteran is right handed; accordingly, his left shoulder disability will be rated as impairment of the minor shoulder under VA regulations. 38 C.F.R. § 4.69. Additionally, the regulations provide that normal range of motion for the shoulder is from 0 to 180 degrees for flexion and abduction, and internal rotation to 90 degrees both up and down. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. Diagnostic Code 5003 provides that 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 (Diagnostic Code 5200, etc.). 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 Diagnostic Code 5003. In this case, the left shoulder disability is rated based on compensable limitation of motion under Diagnostic Code 5201. Accordingly, Diagnostic Codes 5003 and 5010 are not for application. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. Reference to the Veteran’s disability is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. Analysis As noted above, the Veteran’s left shoulder disability is rated as 20 percent disability under DC 5010-5201. He filed a claim for an increased rating in May 2013. He would be entitled to a higher rating if he had limitation of motion to 25 degrees from the side. Under 38 C.F.R. § 4.69, when determining handedness for an ambidextrous individual, the injured hand, or the most severely injured hand, will be considered the dominant hand for rating purposes. In a June 2016 VA Form 9, the Veteran asserted that both arms/shoulders should be considered dominant as he used both equally. Specifically, he said that he used his left shoulder to shoot and pitch and his right arm/hand/shoulder to write and eat. The Board finds, based on the Veteran’s descriptions of activities, that it can be reasonably found that his right arm is the dominant one. Moreover, the evidence of record consistently shows the Veteran to be right handed. For VA purposes, the handedness will be determined by the evidence of record, or by testing on VA examination. The Veteran’s Reports of Medical History reflect that he reported that he was right handed (See 1992, 1996, and 1997 reports.) In addition, subsequent examination reports during the rating period on appeal reflect that he is considered to be right-handed. Thus, for the purposes of determining the appropriate disability evaluation, the Board considers the Veteran’s right shoulder to be dominant and his left shoulder to be minor. From May 2012 (one year prior to filing the claim) to June 19, 2014 An August 2013 Disability Benefits Questionnaire (DBQ) examination report reflects that the Veteran stated that his left shoulder disability causes severe pain with decreased range of motion. The Veteran described his flare-ups as unbearable pain with decreased strength and range of motion. It was noted that the Veteran was right handed. Upon examination in August 2013, range of motion was flexion to 105 degrees with evidence of painful motion at 85 degrees; abduction limited to 85 degrees with evidence of painful motion at 85 degrees. The Veteran was able to perform repetitive use testing without additional loss of range of motion. Additional functional loss was exhibited by less movement than normal, weakened movement, and pain on movement. There was no localized tenderness or pain on palpation of joints/soft tissue/biceps tendon of either shoulder. There was guarding but no ankylosis. Weakness indicated a positive test which could indicate rotator cuff pathology, including supraspinatus tendinopathy or tear. External rotation/infraspinatus strength test was positive. The Veteran could externally rotate against resistance. The Veteran was able to internally rotate his arm behind his lower back and pushed against the examiner’s hand. There was no subluxation of the glenohumeral joint. The examiner additionally added that left shoulder external rotation ended at 45 degrees and evidence of painful motion was at 45 degrees; internal rotation ended at 45 degrees and evidence of painful motion began at 45 degrees; post-test external and internal rotation ended at 45 degrees. The examiner stated that he was unable to provide degree of additional range of motion loss during a flare-up because the Veteran stated that he maintains range of motion and simple quits the activity; thus, it would be mere speculation to estimate decrease in range of motion. In an August 2013 x-ray, findings showed remolding of humeral head from previous trauma with large spur projecting from inferior aspect of the humeral head. Otherwise the x-rays were negative. The Veteran is not entitled to a rating in excess of 20 percent because he has motion greater than that limited to 25 degrees. The Board acknowledges that the Veteran reported that during flare-ups, the pain is unbearable and he has a greater limitation of motion; however, there is not an indication that the flare-ups were of such frequency and duration that they more nearly approximate the criteria for a higher rating. The Board has also considered the Court’s holdings in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), and DeLuca v. Brown, 8 Vet. App. 202 (1995) with regard to functional impact. However, the examination reports and clinical findings with regard to such factors do not reflect that his symptoms rise to the level to warrant a higher rating. A February 2014 VA clinical orthopedic surgery note reflects that the Veteran reported that he was unable to lift a small amount of weight, and unable to tolerate deltoid activities, bench, push-ups, or pull-ups. Upon examination, he had active flexion to 95 degrees, passive to 105 degrees, active abduction to 75 degrees, and passive abduction to 95 degrees. A March 2014 VA orthopedic surgery note reflects that the Veteran’s current treatment was NSAIDs, activity modification, and that he continues his home exercise program. Upon examination, he had slightly decreased strength, and active and passive range of motion of 120 degrees. Again, as the objective clinical evidence reflects extensive range of motion greater than to 25 degrees from the side, a higher rating is not warranted.   June 19, 2014 to August 1, 2014 The Veteran is in receipt of a 100 percent temporary disability rating from June 19, 2014, to August 1, 2014 due to surgery of the left shoulder. Thus, this period does not need to be discussed further. From August 1, 2014 In a February 2015 VA treatment record, it was noted that the Veteran’s range of motion was to 160 degrees for the left shoulder. It was also noted that the Veteran was in therapy. In a January 2017 VA treatment record, the examining physician determined the Veteran’s range of motion to be the following: active forward flexion to 130 degrees and external rotation to 40 degrees. The VA physician told the Veteran that his function was good at the current time, and did not find that he was a candidate for reverse shoulder arthroplasty. In another January 2017 VA treatment record, the Veteran’s range of motion was noted to be the following: active range of motion to 140 degrees for both flexion and abduction; passive range of motion to 150 degrees of forward flexion and 150 degrees of abduction, limited by reported pain. No instability was noted. In a February 2018 VA examination, the Veteran stated that his condition had worsened since its initial onset. It was noted that the Veteran’s right hand was dominant. The Veteran described flare-ups as his left shoulder becoming stiff and painful and did not move as it usually did. The Veteran described functional loss as not being able to do much with his left arm/shoulder. Upon examination, range of motion was the following: flexion to 100 degrees; abduction to 90 degrees; external rotation to 35 degrees; and internal rotation to 40 degrees. The Veteran stated that he was unable to reach behind his back or perform physical activities beyond shoulder level. Pain was noted on all ranges of motion and there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran stated the severity of the pani was mild to moderate. There was pain with weight bearing and evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of range of motion. The examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, and lack of endurance caused functional loss. The examiner determined range of motion as flexion to 90 degrees; abduction to 80 degrees; and external and internal rotation to 30 degrees. The examiner noted that the examination was not conducted during a flare-up and that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during a flare-up. The pain, weakness, fatigability or incoordination significantly limit functional ability with flare-up as follows: flexion to 80; abduction to 70 degrees; and internal and external rotation to 20 degrees. Additional factors of the disability included less movement than normal and weakened movement. The examiner stated that the symptoms were mild to moderate depending on physical involvement of the left shoulder. This interfered with reaching up, carrying loads, etc. There was no muscle atrophy or ankylosis. There was also no instability. The examiner stated that there was a worsening of the Veteran’s symptoms but no change to the service-connected diagnosis and no additional diagnoses were rendered. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s disability picture more closely approximates a rating in excess of 20 percent for the left shoulder disability as the record does not show the Veteran’s left arm’s range of motion is limited to 25 degrees from side. The Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing limited motion of his left arm. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that he was asserting decreased range of motion in his left shoulder, his lay description does not adequately rebut the medical evidence, including more recent testing, as discussed above. The Board places more probative value on the objective evidence of record which is measured in degrees, rather than on his subjective complaints which are less precise. Therefore, the objective evidence does not establish the Veteran met the criteria associated with a higher 30 percent rating based on limitation of motion in the left arm at any point during the period on appeal. The Board has also considered whether separate or higher ratings are warranted under the other diagnostic codes related to shoulder. The evidence, as noted above, is against a finding of ankylosis. With regard to impairment of the humerus, the evidence does not establish that the Veteran experienced loss of head (flail shoulder), nonunion of the humerus, or fibrous union of such. Although, he was noted to have proximal malunion in 2014, any such deformity warrants a 20 percent maximum rating because the Veteran’s left shoulder is his minor shoulder. Again, the Board has also considered the Court’s holdings in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), DeLuca v. Brown, 8 Vet. App. 202 (1995), and Sharp v. Shulkin, 29 Vet. App. 26 (2017) with regard to functional impact. However, the examination reports and clinical findings with regard to such factors do not reflect that his symptoms rise to the level to warrant a higher rating. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). (Continued on the next page)   Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel