Citation Nr: 18154485 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 16-47 179 DATE: November 30, 2018 ORDER Entitlement to a rating in excess of 40 percent for degenerative arthritis with history of dislocation of the left shoulder with thoracic outlet syndrome (also claimed as left arm swelling), hereinafter a “left shoulder disability,” is denied. Entitlement to a rating in excess of 10 percent for hypertension is denied. FINDINGS OF FACT 1. The Veteran’s left shoulder is productive of unfavorable ankylosis of scapulohumeral articulation as contemplated by the highest schedular rating for a non-dominant upper extremity pursuant to Diagnostic Code 5200. 2. Hypertension is not shown to be productive of diastolic pressure of predominantly 110 or more, or systolic pressure of predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent rating for a left shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.7, 4.71a, Diagnostic Codes 5200, 5201, 5202. 2. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1972 to March 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Jurisdiction over the case is currently with the VA RO in Boston, Massachusetts. During the course of this appeal, in an August 2017 rating decision, the RO assigned a separate rating for the Veteran’s painful left shoulder scars with a 10 percent disability rating assigned effective October 31, 2014 and a 20 percent rating assigned from November 19, 2015; a separate noncompensable evaluation was assigned the Veteran’s surgical scar. In that rating decision, the RO also granted service connection for loss of use of the left hand as secondary to the Veteran’s service-connected left shoulder disability, and granted a separate 60 percent evaluation effective October 31, 2014. The RO also noted that instead of assigning a 30 percent evaluation for injury to Muscle Groups I and II as they related to the left shoulder, a 40 percent evaluation would be assigned based on ankylosis of the scapulohumeral articulation. See, e.g., 38 C.F.R. § 4.55(c)(2). Other than the left shoulder disability evaluation, these other matters are not before the Board at present as the Veteran has not filed an appropriate notice of disagreement with this additional RO action. In a September 2017 rating decision, the RO granted the Veteran entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). Increased Rating Claims 1. Left Shoulder Disability Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), 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, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Board notes further that in Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." 29 Vet. App. 26, 35 (2017). In this case, the June 2017 VA clinician described the Veteran's functional loss during repetitive use over time and flare-ups. Further, in Correia v. McDonald, the Court found that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 28 Vet. App. 158, 169-70 (2016). Here, the VA clinician tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and included range of motion measurements of the opposite undamaged joint. See July 2017 VA examination addendum. The Veteran contends that he is entitled to a higher evaluation for his left shoulder disability as his symptoms are worse than those contemplated by the currently assigned rating. By way of background, the Veteran was previously rated under Diagnostic Code 5003 (formerly Diagnostic Code 5203) as 10 percent disabling from July 23, 2004. In a March 2015 rating decision, the Veteran’s left shoulder disability was evaluated under Diagnostic Code 5201 as 20 percent disabling from October 31, 2014. Finally, in an August 2017 rating decision, the Veteran’s left shoulder disability was evaluated under Diagnostic Code 5200 as 40 percent disabling from October 31, 2014. Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees.; additionally, lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71a, Plate I. Handedness, for the purpose of a dominant (major) or non-dominant (minor) rating will be determined by the evidence of record, or by testing on VA examination; moreover, only one hand shall be considered dominant. 38 C.F.R. § 4.69. As discussed below, the Veteran is right-hand dominant; therefore, his left shoulder disability has been properly considered under the rating criteria for the minor, or non-dominant, extremity. Diagnostic Code 5200 provides rating criteria for ankylosis of scapulohumeral articulation, where the scapula and humerus move as one piece. See id., Diagnostic Code 5200. The relevant criteria indicate that favorable ankylosis is abduction to 60 degrees; while unfavorable ankylosis is abduction limited to 25 degrees. A maximum 40 percent disability rating is warranted for unfavorable ankylosis of the minor (non-dominant) side, where abduction is limited to 25 degrees from the side. Id. The Veteran was afforded a VA examination in January 2015. At that time, the Veteran was diagnosed with degenerative arthritis of the left shoulder. The Veteran reported that he first injured his left shoulder in 1972 during a training exercise that resulted in a fall and severe dislocation of his left shoulder. He stated he had subsequent dislocations shortly after from minimal trauma. He underwent corrective surgery in 1973, and over 40 years gradually developed pain and limitation of motion. The Veteran stated his pain and limitation of motion were very marked, and that in 2014 he developed lymphedema with pitting edema and weakness of his left hand. The Veteran reported he was right hand dominant. He endorsed flare-ups resulting from everyday movement. Specifically, he stated if he rolled over at night, his shoulder would be painful and would result in more limited range of motion. He reported he had been limiting himself more over time, and that his range of motion had decreased. He stated he had steroid injections that were unsuccessful, and that he had taken pain medication but did not wish to continue that medication. The Veteran reported functional loss. Upon physical examination, range of motion testing of the left shoulder was as follows: flexion to 80 degrees; abduction to 60 degrees; internal and external rotation to 60 degrees each. His right shoulder range of motion was normal. It was noted that the Veteran could not reach his shoes to tie them. There was evidence of pain on weight-bearing. Objective evidence of localized tenderness or pain on palpation of the joint was shown at the Veteran’s deltoid one half inch down from the left shoulder. The Veteran was unable to perform repetitive use testing with at least three repetitions due to significant pain. It was noted that pain, weakness, fatigability, or incoordination significantly impacted the Veteran’s functional ability with repeated use over time. His range of motion was noted to be very limited. The examination was not conducted during a flare-up. The Veteran had reduced muscle strength, entirely due to his left shoulder disability. He had muscle atrophy due to the left shoulder disability. There was no ankylosis of the left side. The Veteran had shoulder instability, and a positive crank apprehension and relocation test on the left side. One scar was shown on the left shoulder measuring 10 centimeters in length and 1 centimeter in width. There was no crepitus. It was noted that the Veteran was a bartender and had to retire from this work due to his left shoulder disability. The Veteran was afforded another VA examination in June 2017. He reported the injury as previously stated at his January 2015 VA examination. He reported he previously worked in food service sales, bricklaying, carpentry house framing, and other manual labor. He reported flare-ups occurring once or twice monthly, causing unusual pain that was generally related to the weather. He reported functional loss as the inability to tie his shoes or put away glass in a cabinet with his left arm. Upon physical examination, range of motion testing of the left shoulder was as follows: flexion and abduction to 10 degrees each; and internal and external rotation to 90 degrees each. Range of motion testing of the right shoulder was normal. The examiner noted that the Veteran had “almost no motion in his left arm/shoulder.” There was no evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the left shoulder. It was noted that the Veteran had 3 procedures over the years in the same area, so the area was very sensitive on palpation. There was objective evidence of crepitus. The Veteran was unable to perform repetitive use testing of the left shoulder, and the examiner noted again that the Veteran had “VERY limited rom.” It was noted that pain, weakness, fatigability or incoordination did significantly limit functional ability with repeated use over a period of time. The examiner again noted that he had “almost no range of motion.” In addition, additional contributing factors of disability was that “he ha[d] no motion of the left shoulder.” He had reduction in muscle strength. He was not noted to have muscle atrophy. He had ankylosis in abduction between favorable and unfavorable (intermediate ankylosis). Additional comments from the examiner stated that the Veteran had “very limited motion left shoulder.” When the examiner attempted to evaluate if there was evidence of pain on passive range of motion, and evidence of pain during nonweight-bearing, the examiner noted that the Veteran’s “left shoulder is essentially frozen.” The right shoulder (opposing joint) was undamaged. The scars were noted to be well-healed on the surface although the entire left shoulder was noted to be tender to touch let alone palpation indicating that the pain is from organs below the scars/skin level. In August 2017, the examiner provided an addendum to the June 2017 VA examination. In that addendum, the examiner noted the Veteran had atrophy of the shoulder and upper arm that was difficult to quantitate. The atrophy involved Muscle Groups I and II of the left side. The Veteran’s left shoulder disability is currently rated at 40 percent disabling under Diagnostic Code 5200. The Veteran is receiving the highest possible rating under Diagnostic Code 5200. As noted, under Diagnostic Code 5200, the maximum rating for a minor upper extremity (the Veteran’s left arm in this case) is 40 percent (which is currently assigned) for unfavorable ankylosis of scapulohumeral articulation. Also, the only other Diagnostic Code predicated on limitation of motion for which a higher rating is potentially assignable is Diagnostic Code 5202. Under Diagnostic Code 5202, for a 50 percent rating for a minor upper extremity, the Veteran would need to present with nonunion of the humerus (false flail joint), and he does not. Further, the competent medical evidence does not establish the functional equivalent of impairment of the humerus required to warrant a higher evaluation. The Board is cognizant that the Veteran has experienced functional impairment and pain due to his left shoulder disability. However, because the 40 percent evaluation is the maximum for impairment (ankylosis) of the minor shoulder joint under Diagnostic Codes 5200, further DeLuca consideration is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board finds further that a higher rating is not warranted under any analogous codes including, as noted above, the applicable muscle group injury codes. See, e.g., 38 C.F.R. § 4.55(c)(2) (where the shoulder is ankylosed and Muscle Groups I and II are severely disabled, the shoulder disability rating is elevated to the level for unfavorable ankylosis under 38 C.F.R. § 4.71a, Diagnostic Code 5200, but the muscle groups themselves will not be rated). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Hypertension The Veteran contends that he is entitled to a higher evaluation for hypertension as his symptoms are worse than those contemplated by the currently assigned rating. The Veteran post-service treatment records show blood pressure readings during the appeal period. A review of the record shows the Veteran’s blood pressure, at worst, was recorded at 154 systolic pressure over 94 diastolic pressure (154/94). In January 2015 and June 2017, the Veteran was afforded VA hypertension examinations. Based on a review of the Veteran’s claim file and an in-person examination, the examiners found that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. In addition, the Veteran’s blood pressure readings on two dates in January 2015 were recorded as 150/100 and 126/80. Moreover, the Veteran’s blood pressure readings in June 2016 and two dates in June 2017 were recorded as 107/64, 188/88, and 205/105. The examiners noted that the Veteran’s treatment plan included taking continuous medication for his hypertension. He did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to his hypertension, and the examiners concluded that the Veteran’s hypertension did not impact his ability to work. The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his hypertension. Specifically, the evidence does not show that the Veteran’s diastolic blood pressure was predominantly 110 or more, or that his systolic blood pressure was predominantly 200 or more. Therefore, the Board finds that entitlement to an initial rating in excess of 10 percent for hypertension is not warranted. 38 C.F.R. § 4.104, Diagnostic Code 7100. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel