Citation Nr: 18155887 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-55 287 DATE: December 6, 2018 ORDER A 20 percent rating for traumatic osteoarthritis of left acromioclavicular joint with limitation of motion, for the entire appeal period since the Veteran filed his claim in August 2013, is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT Throughout the appeal period since the Veteran filed his claim in August 2013, the Veteran’s left shoulder disability has resulted in loss of range of motion midway between the side and shoulder level; but has not resulted in limitation of motion to 25 degrees from the side. CONCLUSION OF LAW The criteria for a 20 percent rating for loss of range of motion of left acromioclavicular joint, for the entire appeal period, have been met, since the Veteran filed his claim in August 2013. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.27, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to July 1992. Entitlement to a rating in excess of 20 percent for traumatic osteoarthritis of left acromioclavicular joint Disability ratings are determined by evaluating the extent to which the Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Notably, “staged” ratings are appropriate when 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. 505, 510 (2007). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the Veteran experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; 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. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran has been service connected for traumatic osteoarthritis of left acromioclavicular joint, effective January 16, 1997, under Diagnostic Code (DC) 5203, painful motion of the shoulder. The Veteran filed an increased rating claim in May 2013. A February 2014 rating decision denied an increase in the rating, but changed the rating code and title of the Veteran’s left arm disability to traumatic osteoarthritis of left acromioclavicular joint (previously rated under DC 5203), under DC 5201-5019. Subsequently, an October 2016 rating decision increased the disability rating to a 20 percent evaluation for traumatic osteoarthritis of left acromioclavicular joint (previously rated under DC 5203), effective September 23, 2016, under DC 5019-5201. The first DC is assigned for bursitis under DC 5019, while the second DC is assigned for limitation of motion of the arm under DC 5201. The evidence shows the Veteran is right-hand dominant; therefore, his service-connected left shoulder/arm disability affects his minor extremity. In an April 2014 notice of disagreement, the Veteran explicitly requested an increase to 30 percent for his left shoulder/arm disability. Although the October 2016 rating decision increased the Veteran’s rating to a 20 percent evaluation, effective September 23, 2016, this was not an increase to a 30 percent evaluation, as requested by the Veteran; and it did not cover the entire appeal period. As such, the issue remains on appeal before the Board. DC 5201 affords a 20 percent evaluation for limitation of the arm at the shoulder level for both the major and minor side, a 20 percent evaluation for limitation of the arm midway between the side and shoulder level for the minor side, and a 30 percent evaluation for 25 degrees from the side on the minor side. Limitation of motion in either the flexion or abduction planes may establish a compensable disability under diagnostic code 5201. See Mariano v. Principi, 17 Vet. App. 305, 317 (2003). Motion of the shoulder/arm is measured based on the ability to move the arm from a position at the side of the body to a position over the head. Both abduction and elevation (flexion) of the arm is from 0 degrees when the arm is straight down at the side of the body, to 90 degrees when the arm is straight out from the body at the shoulder level, to 180 degrees when the arm is straight up, by the head. The ability to rotate the shoulder is from 0 degrees when the arm is at shoulder level, flexed at the elbow, with external rotation to 90 degrees moving the arm up towards the head and internal rotation to 90 degrees when moving the arm down towards the body. 38 C.F.R. § 4.71, Plate I. The Veteran has consistently demonstrated limited range of motion in the left shoulder. While limited, the Veteran’s range of motion warrants no more than a 20 percent rating under DC 5201, as his motion has never been limited to 25 degrees from the side, as indicated below. See 38 C.F.R. § 4.71a, DC 5201. VA CAPRI records from July 2013 to the present have consistently demonstrated limited range of motion for the Veteran’s left shoulder disability, with left shoulder abduction limited to 90 degrees, and external and internal rotation also limited. The Veteran was afforded VA examination for his shoulder in February 2014. He was diagnosed with left shoulder strain and traumatic arthritis left acromioclavicular joint. The examiner noted that the Veteran was able to perform left shoulder forward flexion to 180 degrees, abduction to 175 degrees with objective evidence of painful motion, and left shoulder external rotation and internal rotation both to 90 degrees. After repetitive-use testing, he had less movement than normal, weakened movement, and pain on movement. There was no evidence of ankylosis and no history of recurrent dislocation. An August 2014 private left-shoulder examination revealed that the Veteran was able to perform forward flexion to 160 degrees, abduction to 150 degrees, external rotation to 70 degrees and internal rotation to 60 degrees. A September 2016 VA examination for the Veteran’s left shoulder revealed forward flexion to 90 degrees, abduction to 90 degrees, external rotation to 55 degrees and internal rotation to 55 degrees. The examiner indicated that the Veteran experienced flare-ups with pain, stiffness, limited range of motion and difficulty with heavy lifting. After repetitive-use testing, the Veteran performed left shoulder forward flexion to 85 degrees, abduction to 85 degrees, external rotation to 50 degrees and internal rotation to 50 degrees. After repetitive-use over time, the examiner indicated that pain, weakness and lack of endurance caused functional loss, and estimated in terms of range of motion as forward flexion limited to 80 degrees, abduction to 80 degrees, external rotation to 45 degrees and internal rotation to 45 degrees. With flare-ups, the examiner estimated that his range of motion would be limited to forward flexion of 75 degrees, abduction to 75 degrees, external rotation to 40 degrees and internal rotation to 40 degrees. A November 2017 VA examination for the Veteran’s left shoulder revealed that he could perform forward flexion to 90 degrees, abduction to 90 degrees, external rotation to 55 degrees and internal rotation to 55 degrees. The examiner indicated that the Veteran was examined after repetitive-use testing, but there was no additional loss of function or range of motion. The examiner noted that it was not possible to determine, without resorting to mere speculation, the estimated loss of range of motion during flare-ups or after repetitive-use testing over time. The examiner concluded that there was objective evidence of pain on passive range of motion testing; there was no objective evidence of pain when the joint was used in non-weight bearing; and the opposing joint was undamaged with no examination abnormalities. An October 2018 left shoulder VA examination revealed that the Veteran could perform forward flexion to 120 degrees, abduction to 140 degrees, external rotation to 80 degrees and internal rotation to 80 degrees. The examiner indicated that pain was noted but it did not result in or cause functional loss. The Veteran was observed after repetitive-use testing, but the examiner indicated that it did not cause additional loss of function or range of motion. The examiner noted that repeated use over time and flare-ups caused pain, weakness and discomfort, and even decreased the range of motion; however, the examiner was unable to describe the decreased range of motion in degrees. Additionally, contributing factors of the disability were disturbance of locomotion, and it was described as discomfort impacting lifting and raising of the Veteran’s arm over his head. While the Veteran’s flexion and abduction have consistently been limited during the appeal period, clinicians have consistently noted that there is no evidence of ankylosis of the glenohumeral or scapulohumeral articulation, i.e., the scapula and humerus moving as one piece, as contemplated by the 30 percent rating under DC 5200. Therefore, DC 5200 does not assist the Veteran in obtaining a higher rating in this case. The Veteran’s muscle strength on the left side has been decreased (3/5) to active movement against gravity. However, despite the evidence of decreased muscle strength and weakness, the evidence does not reflect that these symptoms have resulted in any additional functional limitation or impairment, including more limitation of motion or impingement of the acromioclavicular joint, clavicle, or scapula. Additionally, VA examiners have consistently noted that he does not have a history of recurrent dislocation or subluxation of the glenohumeral or scapulohumeral joints. Therefore, DC 5202 does not assist the Veteran in obtaining a higher rating. The Veteran does not have impairment of his clavicle or scapula. Therefore, DC 5203 also does not assist him in obtaining a higher rating in this case. Based on the foregoing, the Board finds the preponderance of the evidence is against the grant of a rating higher than 20 percent for the service-connected left shoulder/arm disability. However, the Veteran has remained essentially the same in severity throughout the appeal period. As such, a 20 percent rating for left acromioclavicular joint with limitation of motion is assigned for the entire appeal period. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is related to service, or in the alternative, is secondary to his service-connected posttraumatic stress disorder (PTSD). The Veteran has been provided a VA examination in June 2017 regarding his sleep apnea. However, it only provided a negative nexus opinion that the Veteran’s current sleep apnea disability is not caused by his service-connected PTSD. The opinion did not provide an opinion on direct service connection, or reasoning on aggravation; and the Board needs an adequate opinion regarding whether the Veteran’s current sleep apnea is directly related to service, or aggravated by his service-connected PTSD. When the medical evidence is inadequate, as it is here, new VA examination must be afforded to the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. Provide the Veteran an addendum opinion to the June 2017 VA opinion. The need for an examination is left to the examining official. Based upon a review of the relevant evidence of record, the examiner is asked to offer the following opinion as it relates to the Veteran’s sleep apnea: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea disability had its onset in, or is otherwise related to his period of active duty service? Please consider statements from the Veteran and his fellow servicemen stating that he exhibited sleep apnea symptomatology while in service. Notwithstanding the above, is it at least as likely as not (50 percent probability or greater) that any sleep apnea disability was aggravated beyond its natural progression by the Veteran’s service-connected PTSD? In offering any opinion, the examiner must consider the full record, and the fact that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. The rationale for any opinion offered should be provided. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel