Citation Nr: 18158183 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-01 152 DATE: December 14, 2018 ORDER Entitlement to an initial evaluation of 30 percent, and no greater, for service-connected residuals of left shoulder arthrotomy and Bankhart repair with instability is granted. FINDING OF FACT Throughout the appeal period, the Veteran’s left shoulder is restricted in lateral rotation, inhibiting the normal working movement of the joint. CONCLUSION OF LAW The criteria for an initial evaluation of 30 percent, and no greater, for service-connected residuals of left shoulder arthrotomy and Bankhart repair with instability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5019-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from June 1981 to August 1981 and June 1982 to July 1982, and with the United States Marine Corps from April 1987 to April 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of left shoulder arthrotomy and Bankhart repair with instability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell, 25 Vet. App. at 37-38. Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. The Veteran’s left shoulder disability is currently rated as 20 percent disabling under Diagnostic Code (DC) 5019-5201. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for bursitis limiting the range of motion in his left shoulder. The rating criteria for the shoulder are found at Diagnostic Codes 5200 through 5203. 38 C.F.R. § 4.71a. These codes distinguish between the major, or dominant, extremity and the minor, or non-dominant, extremity. 38 C.F.R. § 4.69. The evidence shows the Veteran to be ambidextrous, favoring his left hand in all things but writing. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. Id. Here, the major extremity is the Veteran’s left shoulder, as it is more severely injured than the right shoulder. Diagnostic Code 5019, which governs bursitis, is rated using the limitation of motion criteria of the affected part. Diagnostic Code 5201 provides that limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremities. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity and a 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 a 30 percent rating for a minor extremity. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. In January 2016, the Veteran was afforded a VA shoulder examination in conjunction with the service connection claim. Flexion of the left shoulder was measured as 175 degrees; abduction was 130 degrees; external rotation was 60 degrees; and internal rotation was 80 degrees. Medial and lateral rotation were not measured. The range of motion remained the same on both sides after repetitive use testing. Pain was noted on each of these motions, which caused functional loss, as well as with weightbearing. Further, the limitation in range of motion was noted to cause functional limitation in pushing, pulling, lifting carrying, throwing, sitting, standing, and locomotion. There was mild localized tenderness over the entire shoulder. The examiner noted additional contributing factors of disability of less movement than normal, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing was all normal. There was no indication of dislocation, or of any injury or impairment to the humerus, clavicle, or scapula, and no ankylosis. The Veteran asserted in an August 2018 appellate brief that his left shoulder disability had worsened since the January 2016 VA examination. As the Veteran submitted a disability benefits questionnaire relevant to this claim in February 2018, a new VA examination is not necessary. See 38 C.F.R. § 3.326; see also Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where the available evidence is too old to adequately rate the current severity of a disability, VA must provide a new examination). In the February 2018 private examination, the Veteran reported severe pain upon any accidental extension of his arm. Flexion of the left shoulder was measured as 175 degrees; abduction was 170 degrees; external rotation was 35 degrees; and internal rotation was 70 degrees. Medial and lateral rotation were not measured. The range of motion remained the same on both sides after repetitive use testing. Pain was noted on each of these motions, which caused functional loss, as well as with weightbearing. There was localized pain in the anterior and posterior regions of the left shoulder. The examiner noted contributing factors of disability of the left shoulder of less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, atrophy of the deltoid muscle, instability of station, and disturbance of locomotion. Muscle strength was slightly less than normal in the left shoulder. There was no indication of any current dislocation difficulties; of any injury or impairment to the humerus, clavicle, or scapula; or of ankylosis. The Veteran submitted a written statement in July 2016 describing the results of surgery for which his left shoulder is service-connected. He reported that bolts and wires were implanted in his shoulder joint that prohibits medial and lateral rotation of his left shoulder. The Board notes that medial rotation is, with the left elbow bent to 90 degrees and remaining at the hip, movement of the left hand outward to the left; lateral rotation is movement of the left hand inward toward the torso. The Veteran reported having only approximately 10 degrees of lateral rotation due to the bolts and wires implanted during the surgical repair of his left shoulder. After consideration of the foregoing evidence, the Board finds that an increase in evaluation is appropriate. The Veteran is currently in receipt of a 20 percent rating under DC 5201, which governs limitation of motion of the arm. Under this rating schedule, a 30 percent or greater rating is not appropriate unless the Veteran’s range of motion were limited to flexion midway between his side and shoulder level. Because the Veteran is able to manipulate his shoulder to the full range of motion in flexion, an increase under the current code is not warranted. The Board has also considered the Veteran’s disability under other shoulder codes. Diagnostic Code 5200 is not for application in this case, as there is no evidence of ankylosis of the left shoulder. Diagnostic Codes 5202 and 5203 are also not applicable here, as DC 5202 governs impairment of the humerus and DC 5203 governs impairment of the clavicle or scapula. The examinations of record do not indicate that the Veteran suffers from either of these types of shoulder and arm disabilities. (Continued on the next page)   However, it is clear from the record that the normal working movement of the Veteran’s left shoulder is affected by his service-connected shoulder disability. The Veteran reported only 10 degrees of lateral motion with his left arm due to the surgical repair of the left shoulder. Accordingly, under the provisions of section 4.40, DeLuca, and Mitchell, and after resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran had additional functional loss and is entitled to an increase to the next higher rating of 30 percent. See 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37-38; Deluca, 8 Vet. App. at 207-07. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel