Citation Nr: 18155930 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-52 373 DATE: December 6, 2018 ORDER Entitlement to an initial rating of 10 percent, but no higher, for right shoulder spasms prior to March 3, 2016, is granted. Entitlement to an initial rating in excess of 20 percent for right shoulder spasms from March 3, 2016, forward is denied. FINDINGS OF FACT Throughout the appellate period, the Veteran’s service-connected right shoulder spasms has resulted in no worse than noncompensable limitation of motion to above shoulder level, with pain; no ankylosis, other impairment of the humerus, or impairment of the clavicle or scapula has been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent for right shoulder spasms prior to March 3, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5201 (2018). 2. The criteria for an initial rating in excess of 20 percent for right shoulder spasms have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5201 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1978 to July 1991, and from October 1992 to February 1993, with membership in the U.S. Army National Guard from November 1996 to April 2012. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an February 2013 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board notes that the Veteran continues to work full time, and so inference of a claim for total disability based on individual unemployability (TDIU) is not warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period 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). In this case, the Board finds that based on the evidence, further staged increased ratings are not warranted. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends that he is entitled to an initial compensable rating for his right shoulder spasms for the period prior to March 3, 2016, and a rating in excess of 20 percent thereafter. In his January 2015 Notice of Disagreement, the Veteran reported that he has limited motion and continued pain above shoulder level. The Veteran stated in his October 2016 VA Form 9 that he experiences continued deterioration and “wear and tear” in his right shoulder due to his duties as a combat engineer and helicopter repairman in service. The Veteran further stated that his duties required him to work with his arms raised above his head or at shoulder length, and that he has to compensate with his left arm. The Veteran’s right shoulder spasms are currently rated under Diagnostic Code 5201 based on limitation of arm motion. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants 20 percent. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity, and 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. 38 C.F.R. § 4.71a. The VA examination reports of record reflect that the Veteran is right-hand dominant. The Veteran was afforded a VA examination in January 2013. The Veteran endorsed pain with throwing objects, and pain with overhead use of his arm. He reported flare-ups when throwing objects. Upon physical examination, the Veteran displayed 175 degrees of flexion with no objective evidence of painful motion, and 170 degrees of abduction with no objective evidence of painful motion. The VA examiner reported that the Veteran did not have additional limitation in range of motion of the shoulder following repetitive-use testing. No tenderness, pain on palpation, or guarding observed. Muscle strength testing was reportedly normal, and rotator cuff testing was assessed as negative. The Veteran did not have ankylosis of the glenohumeral articulation (shoulder joint), a history of mechanical symptoms, or recurrent dislocation (subluxation) of the glenohumeral joint. The VA examiner opined that the Veteran’s shoulder disability did not impact his ability to work. Thereafter, the Veteran underwent VA examination in March 2014. Since the last examination, the Veteran reported that he experienced “more pain and more restriction” regarding movement. The Veteran displayed 130 degrees of right shoulder flexion on physical examination with no objective evidence of painful motion. The VA examiner further observed 120 degrees of abduction with no objective evidence of painful motion. The examination report indicated that the Veteran did not have additional limitation in range of motion of the shoulder following repetitive-use testing, but that he had functional loss and impairment, including less movement than normal and pain on movement. The Veteran had localized tenderness or pain on palpation of the right shoulder, but no guarding. Muscle strength testing was normal, and rotator cuff testing was reportedly negative. The VA examiner reported that the Veteran did not have ankylosis or subluxation of the shoulder joint, but had a history of mechanical symptoms in the right shoulder. An x-ray performed during the examination yielded no bony, joint, or soft tissue abnormality, and was assessed as normal. The VA examiner opined that the Veteran’s shoulder disability did not impact his ability to work. The Board notes that VA outpatient treatment records dated June 2014 reflect that the Veteran endorsed right shoulder pain on abduction. A December 2014 MRI of the right shoulder showed narrowing of the anterior aspect of the anterior subacromial space, and superimposed, chronic, mild hypertrophic AC joint osteoarthropathy. In a subsequent March 2016 VA examination, the Veteran reported that he experienced flare-ups when his range of motion is extended, and described the pain as sharp, stabbing pain followed by days of spasms. He further reported pain and limited motion at shoulder level with fatigue. Upon physical examination, the VA examiner reported that range of motion of the right shoulder was normal but with pain on abduction. The VA examiner further observed tenderness in the anterior shoulder capsule, but no evidence of pain with weight bearing or crepitus. The examination report noted that the Veteran did not have additional loss of function or range of motion on repetitive-use testing. The examination report indicated that pain on flare-ups significantly limit the Veteran’s functional ability. The VA examiner reported that muscle strength and rotator cuff testing were normal, and that the Veteran did not have muscle atrophy, ankylosis, or shoulder instability, dislocation, or labral pathology, loss of head, nonunion, or fibrous union, or malunion of the humerus with moderate or marked deformity. The examination report indicated that the Veteran did not use any assistive devices, and that his shoulder disability does not impact his ability to work. Thereafter, VA physical therapy records dated June 2016 indicate that the Veteran endorsed shoulder pain that was worsened by overhead work. Upon physical examination, the Veteran displayed tenderness and decreased soft tissue mobility of the right upper trapezius muscle. The Veteran was afforded a subsequent VA examination in June 2017. The Veteran reported spasms on daily basis to posterior right shoulder, and that as day goes on he has increased pain to the posterior right shoulder. He further reported treatment with physical therapy and medication with limited relief. He noted that overhead activity is “problematic.” He noted flare-ups upon overhead use or with throwing overhand. Upon physical examination, the Veteran displayed 160 degrees of flexion, 150 degrees of abduction, 90 degrees of external rotation, and 90 degrees of internal rotation with no pain, tenderness, or crepitus noted on examination. The examination report indicated that the Veteran did not have additional functional loss or range of motion after repetitive-use testing. The examination report further noted that muscle strength testing was normal, and that the Veteran did not have muscle atrophy, ankylosis, instability, dislocation, or labral pathology, loss of head, nonunion, or fibrous union, or malunion of the humerus. The VA examiner opined that the Veteran’s right shoulder disability did not impact his ability to work. The Board finds that the competent and credible evidence of record does not support a rating in excess of 20 percent at any time for right shoulder spasms. The Veteran displayed 130 to 180 degrees of flexion and 120 to 180 degrees of abduction, and full and complete movement in internal and external rotation. As such, limitation of motion is noncompensable under Code 5201. Movement is painful, however, and so a minimum 20 percent rating for the right shoulder under 38 C.F.R. § 4.59 is warranted. It is VA policy to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. No higher rating is merited unless the schedular criteria for such under 5201 are met. As there is no ankylosis in the joint, or nonunion or malunion of the humerus, clavicle, or scapula, no other diagnostic code is applicable. Therefore, for the reasons stated above, the Board finds that an initial rating of 20 percent, but no higher, is warranted for the entire period on appeal. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel